Secretary Basic Shiksha Parishad vs Vinay Kumar Pandey And 11 Others on 16 April, 2024

[Cites 19, Cited by 0]

Allahabad High Court

Secretary Basic Shiksha Parishad vs Vinay Kumar Pandey And 11 Others on 16 April, 2024

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

AFR

Neutral Citation No. - 2024:AHC:65973-DB

Case :- SPECIAL APPEAL No. - 160 of 2024

Appellant :- Secretary Basic Shiksha Parishad

Respondent :- Vinay Kumar Pandey And 11 Others

Counsel for Appellant :- Anil Kumar Singh Bishen,Anjani Kumar Shahwal,Kushmondeya Shahi

Counsel for Respondent :- Aashish Kumar,Agnihotri Kumar Tripathi,Anurag Agrahari,Anurag Tripathi,Archit Mandhyan,Ashwani Kumar Yadav,C.S.C.,Dinesh Kumar Yadav,Dinesh Yadav,Indresh Dubey,Irshad Ali,Mahima Sahai,Rahul Kumar Mishra,Ramashankar Yadav,Rishabh Kumar,Sanjai Singh,Shamsuddin Ahmad,Subedar Shukla,Sunil Kumar,Sushil Kumar Pandey,Yatindra Kumar Dubey

Connected with

Case :- SPECIAL APPEAL No. - 175 of 2024

Appellant :- State Of Up And Another

Respondent :- Vinay Kumar Pandey And 10 Others

Counsel for Appellant :- Abhishek Srivastava,Rama Nand Pandey

Counsel for Respondent :- Anurag,Indresh Dubey,Mahesh Sharma

And

Case :- SPECIAL APPEAL DEFECTIVE No. - 176 of 2024

Appellant :- Ram Bharosh Patel And 17 Others

Respondent :- State Of Up And 2 Others

Counsel for Appellant :- Navin Kumar Sharma

Counsel for Respondent :- Archana Singh,C.S.C.

And

Case :- SPECIAL APPEAL DEFECTIVE No. - 180 of 2024

Appellant :- Rakesh Kumar And 166 Others

Respondent :- State Of Up And 2 Others

Counsel for Appellant :- Jamil Ahmad Ansari,Rameshwar Prasad Mishra

Counsel for Respondent :- Archana Singh,C.S.C.

And

Case :- SPECIAL APPEAL No. - 194 of 2024

Appellant :- Rakesh Kumar Rai And 239 Others

Respondent :- State Of Up And 2 Others

Counsel for Appellant :- Seemant Singh

Counsel for Respondent :- Archana Singh,C.S.C.,Indresh Dubey

And

Case :- SPECIAL APPEAL No. - 227 of 2024

Appellant :- Akhileshwar Mani Tripathi And 29 Others

Respondent :- State Of Up And 2 Others

Counsel for Appellant :- Jamil Ahmad Ansari

Counsel for Respondent :- Archana Singh,C.S.C.

And

Case :- SPECIAL APPEAL No. - 255 of 2024

Appellant :- Shivam Pandey And 55 Others

Respondent :- State Of Up And 12 Others

Counsel for Appellant :- Abhishe Pandey,Irshad Ali,Seemant Singh

Counsel for Respondent :- Archana Singh,C.S.C.,Indresh Dubey

And

Case :- SPECIAL APPEAL No. - 258 of 2024

Appellant :- Amit Kumar Dubey And 649 Others

Respondent :- State Of Up And 12 Others

Counsel for Appellant :- Seemant Singh

Counsel for Respondent :- Archana Singh,C.S.C.

And

Case :- SPECIAL APPEAL DEFECTIVE No. - 168 of 2024

Appellant :- Ashwini Kumar And 23 Others

Respondent :- State Of Up And 12 Others

Counsel for Appellant :- Rajesh Kumar Pandey,Seemant Singh

Counsel for Respondent :- Agnihotri Kumar Tripathi,Archana Singh,C.S.C.

And

Case :- SPECIAL APPEAL DEFECTIVE No. - 186 of 2024

Appellant :- Vinod Kumar Mishra And 206 Others

Respondent :- State Of Up And 12 Others

Counsel for Appellant :- Agnihotri Kumar Tripathi,Seemant Singh

Counsel for Respondent :- Archana Singh,C.S.C.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Qamar Hasan Rizvi,J.

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Delay in filing of defective appeals are explained to the satisfaction of the Court. Delay Condonation Applications are allowed. The appeals are treated to be filed within time and taken up on board for hearing with the consent of learned counsel for the parties.

2. This bunch of special appeals arise out of the judgment of learned Single Judge dated 12.1.2024, passed in a batch of writ petitions raising similar questions of law and fact. While disposing of the writ petitions, learned Single Judge has allowed the claim of 12091 shortlisted candidates for appointment as trainee teachers while claim of others, who claimed parity with the 12091 shortlisted candidates on the ground that their performance was similar or superior has been rejected. To the extent claim of 12091 shortlisted candidates are allowed the State of Uttar Pradesh and the Secretary, Basic Shiksha Parishad, Uttar Pradesh, Allahabad are aggrieved and have filed Special Appeal Nos.160 of 2024 and 175 of 2024. Other Special appeals are preferred by those candidates whose claim of parity with 12091 shortlisted candidates is rejected by the Learned Single Judge. The special appeal no.160 of 2024 filed by the Secretary, Basic Shiksha Parishad, Uttar Pradesh, Allahabad is taken as the lead case.

3. Basic Shiksha Parishad is an authority established under Section 3 of the Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as the 'Act of 1972'). It is entrusted with the task of managing basic education in State of Uttar Pradesh. Section 2(b) of the Act of 1972 defines basic education to mean education upto VIIIth Class imparted in schools other than High Schools or Intermediate Colleges. Recruitment of teachers in educational institutions established by the Basic Shiksha Parishad (also known as 'Board') are governed by the provisions contained in Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as the 'Rules of 1981').

4. Constitution of India was amended vide Eighty-sixth Amendment Act, 2002 introducing Article 21-A, conferring right of compulsory education to all children in the age group of 6 to 14 years. In order to implement this fundamental right, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'RTE Act of 2009'). The RTE Act of 2009 envisioned an academic authority, authorized by the Central Government, to lay down minimum qualifications for appointment as a teacher in the institutions for the children in the age group of 6 to 14 years. The Central Government by way of a notification dated 31.3.2010 designated National Council for Teacher Education (NCTE) as the academic authority in terms of Section 23(1) of the RTE Act of 2009. NCTE, in turn, issued a notification on 23.8.2010 making it mandatory for every teacher to pass the Teacher Eligibility Test (TET). On 11.2.2011, the NCTE prescribed the qualifying marks to pass TET test as 60% or above. This notification conferred authority to provide concession to the candidates belonging to reserved category and also enabled grant of weightage to these TET score in the recruitment process. NCTE also issued a notification on 29.7.2011 recognizing six months training programme for B.Ed. Degree holders to be appointed as teacher in basic schools.

5. Rule 8 of the Rules of 1981, which prescribed the academic qualification for appointment to the post of teacher was amended on 9.11.2011 to bring it in conformity with the NCTE notification dated 23rd August, 2010 and 11th February, 2011. The amended Rule 8(1)(i) and (ii) of the Rules of 1981 are relevant for the present purposes and are reproduced hereinafter:-

"8. Academic Qualifications.- (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of the Rule 5 shall be a shown below against each-

Post Academic Qualifications

(i) Mistresses of Nursery School

(ii) Assistant Master and Assistant Mistresses of Junior Basic Schools Bachelors degree from a University established by law in India or a degree recognised by the Government as equivalent thereto together with Certificate of teaching (Nursery) from recognised training institution of Uttar Pradesh or any other training course recongised by the Government as equivalent thereto and have passed teacher eligibility test conducted by the Government of Uttar Pradesh.

Bachelors degree from a University established by law in India or a degree recognised by the Government as equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC) two years BTC (Urdu) Vishisht BTC and have passed teacher eligibility test conducted by the Government of Uttar Pradesh."

6. TET examination was held on 13.11.2011 in State of Uttar Pradesh by the U.P. Government and its result was declared on 25.11.2011. An advertisement was thereafter issued on 30.11.2011 for appointment of 72825 trainee teachers in the basic schools situated throughout the State of Uttar Pradesh. Large number of candidates applied for appointment pursuant to this advertisement.

7. However, the above referred advertisement dated 30.11.2011 was cancelled and a fresh advertisement dated 7.12.2012 came to be issued for the recruitment of trainee teachers. The reason for cancellation of the previous advertisement was that widespread manipulations were reported in conduct of TET examination held on 13.11.2011. The factors leading to cancellation of advertisement have been noticed by the Supreme Court of India in para 4 of its judgment in State of U.P. and others Vs. Shiv Kumar Pathak and others (Civil Appeal Nos.4347-4375 of 2014), reported in 2018 (12) SCC 595, which are reproduced hereinafter:-

"4. ........Accordingly, the TET was held on 13 th November, 2011 and result thereof was declared on 25th November, 2011. Thereafter on 30 th November, 2011, an advertisement was issued for appointment of 'trainee teachers' in primary schools. The candidates submitted their applications. However, the said advertisement was cancelled and a fresh advertisement dated 7 th December, 2012 was issued which came to be challenged and has been set aside by the impugned judgment. The justification given by the State of Uttar Pradesh for such cancellation is that the result of TET was influenced by the money consideration. On 31 st December, 2011 the amount of several lacs was seized with lists of candidates. FIR No. 675 of 2011 was lodged. Residence of Director of Secondary Education was also searched leading to recovery of certain lists and cash. The State constituted a high powered committee headed by the Chief Secretary on 10th April, 2012 which gave its report dated 1st May, 2012. It was recommended that candidates found involved in any irregularity/criminal activity in the TET examination be prohibited from the selection. The State Government took a decision dated 26 th July, 2012 which was followed by 15th Amendment to the 1981 rules on 31st August, 2012 to the effect that instead of giving weightage to the TET marks as per 12th Amendment, the criteria of 'quality point marks' as prevalent prior to 12th Amendment was adopted. This amendment was challenged on the ground that it rendered the rules inconsistent with the NCTE guidelines referred to above."

8. We may note that by amending the Rules of 1981 the merit of a candidate in the TET exam was made the sole criteria for selection of a teacher. However, on account of large scale manipulations reported in the conduct of TET examination the State amended the recruitment Rules of 1981 vide 15th Amendment in the Rules providing for quality point marks to determine the merit, based on weightage of marks in other examinations, as well.

9. Writ petitions came to be filed by the candidates who had applied for appointment pursuant to advertisement dated 30.11.2011 challenging the cancellation of advertisement as well as the subsequent advertisement issued on 7.12.2012 pursuant to the amended criteria introduced vide 15th Amendment to the Rules of 1981. It was alleged that the amendment incorporated in the Rules of 1981 vide 15th Amendment violated the NCTE notification dated 11.2.2011, inasmuch as weightage of marks in TET test was done away with.

10. Another facet of the controversy is that the advertisement dated 30.11.2011 for appointment of 72725 trainee teachers, who had passed B.Ed. and TET could submit their application form for recruitment to the post of trainee teacher only from five districts. The twin cadre of teachers i.e. local urban area and local rural area in the Rules of 1981 are district level. The advertisement dated 30.11.2011 had restricted the option to a candidate to apply for recruitment only in five districts. This restriction was challenged before this Court in Writ-A No.70682 of 2011 (Sarita Shukla Vs. State of U.P. and others). The writ petition was allowed on 12.12.2011 and a direction was issued to the State to permit candidates to apply for the post of trainee teacher from all 75 districts of the State. In compliance of this direction a fresh advertisement was published on 19.12.2011 extending the last date for filling up application form to 9.1.2012.

11. We have already referred to the passage from the Supreme Court judgment in Shiv Kumar Pathak (supra) as per which a high powered committee was constituted to look into the allegation of malpractice in the conduct of TET Exam. On the basis of recommendation made by this Committee the Rules of 1981 were amended vide 15th Amendment, 2012. Rules 8(1-ii) and 14(3) of the Rules of 1981, as amended, are reproduced hereinafter:-

"8. (1-ii) The word "or by the Government of India" was inserted.

14.(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the Appendix. In the said rules the following Appendix shall be inserted at the end.

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher."

12. It was consequent to the amendment introduced in the Rules of 1981 that the Government Order dated 31.8.2012 was issued cancelling the earlier advertisement dated 30.11.2011. The writ petitions questioning the cancellation of advertisement as well as amendment in the Rules of 1981 were ultimately dismissed on 16.1.2013 by a learned Single Judge of this Court on the ground that concept of trainee teacher is inconsistent with the recruitment rules i.e. the Rules of 1981.

13. Special appeals (Intra-court Appeals) were filed challenging the judgment of learned Single Judge on 16.1.2013 on various grounds. These appeals came to be allowed by the Division Bench on 20.11.2013 and a direction was issued to the State Government to complete the selection process, initiated pursuant to advertisement dated 30.11.2011.

14. The Division Bench judgment of 20.11.2013 then came to be challenged before the Supreme Court in a batch of civil appeals with leading appeal of Shiv Kumar Pathak (supra).

15. The Supreme Court vide interim orders passed in the appeal of Shiv Kumar Pathak (supra) directed the State Government to fill up 72825 posts of assistant teacher as trainee teacher pursuant to the initial advertisement of 30.11.2011. The first direction by the Supreme Court came to be issued on 25.3.2014. The appeals have finally been decided by the Supreme Court on 25.7.2017. In the ultimate analysis the Supreme Court did not approve the judgment of the Division Bench dated 20.11.2013, for the following reasons:-

"16. There is no manner of doubt that the NCTE, acting as an 'academic authority' under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE Act, was competent to issue Notifications dated 23 rd August, 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. However, since NCTE itself has taken the stand that notification dated 11 th February, 2011 with regard to the weightage to be given to the marks obtained in TET is not mandatory which is also a possible interpretation, the view of the High Court in quashing the 15 th Amendment to the 1981 Rules has to be interfered with. Accordingly, while we uphold the view that qualifications prescribed by the NCTE are binding, requirement of weightage to TET marks is not a mandatory requirement."

16. However, in view of the developments that had already intervened on account of the interim orders passed by the Supreme Court, the Supreme Court disposed of the civil appeals, vide judgment and order dated 25.7.2017, on the following terms:-

"17. As a result of above, in normal course the State would have been at liberty to proceed with the selection in terms of advertisement dated 7th December, 2012 in accordance with the amended rules by way of 15th amendment, in view of developments which have taken place during pendency of these appeals, the said advertisement cannot proceed and while upholding the said advertisement, relief has to be moulded in the light of developments that have taken place in the interregnum.

18. Vide interim order dated 25th March, 2014, this Court directed the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in terms of the impugned judgment. Thereafter, on 17th December, 2014, the said order was modified and the State was directed to appoint candidates whose names were not involved in malpractices in the TET test and who had obtained 70% marks (65% for SC, ST, OBC and physically handicapped or any other category covered by the Government policy for reservation). 54,464 posts have already been filled up in compliance of the orders of this Court. The said appointments were subject to result of these matters. It was also observed that if anyone without TET qualification is appointed his services will be terminated. Vide order dated 2 nd November, 2015 it was noted that against 72,825 posts which were advertised, 43,077 candidates had completed training and were working while 15,058 candidates were undergoing training. Around 14,690 posts were vacant. It was further observed that candidates who had the required percentage of marks in terms of order dated 27 th July, 2015 were to file their applications and a Committee constituted for the said purpose could verify such percentage and if parity was found the same benefit could be extended.

19. We have been informed that 66,655 teachers have already been appointed in pursuance of the interim orders of this Court. Having regard to the entirety of circumstances, we are not inclined to disturb the same. We make it clear that the State is at liberty to fill up the remaining vacancies in accordance with law after issuing a fresh advertisement.

20. The matters will stand disposed of in above terms."

17. Before referring to the subsequent developments that have intervened since passing of the final judgment by the Supreme Court it would be appropriate to notice the grievance raised in the writ petitions filed before the learned Single Judge herein.

18. All the writ petitioners claimed that they have acquired right of appointment as trainee teacher under the interim orders of the Supreme Court in Shiv Kumar Pathak (supra) but appointment orders were not issued to them. They claim that they had invoked the jurisdiction of the Supreme Court under Article 32 of the Constitution of India by filing Writ Petition (Civil) Diary No.19925 of 2023. This writ petition has been disposed of vide following orders passed on 27.9.2023:-

"Application seeking condonation of delay in refiling is condoned.

Learned senior counsel appearing for the petitioners submitted that the petitioner(s) is one of the 66,655 teachers (Sub-category 12,091) who have been appointed pursuant to the interim order of this Court. However, the grievance of the petitioners is that there is no actual appointment orders which have been issued to them, therefore, this petition has been filed seeking a writ of mandamus under Article 32 of the Constitution of India.

At this stage, we are not inclined to interfere in the matter. However, liberty is reserved to the petitioners to file a petition before the High Court under Article 226 of the Constitution and seek appropriate remedies.

It is needless to observe that if such a petition is filed before the High Court, the same shall be considered as expeditiously as possible having regard to the fact that the order of this Court is dated 25.07.2017.

The writ petition is disposed in the aforesaid terms.

Pending application(s), if any, shall stand dispose of."

19. Two set of persons, consequently, approached the Writ Court. The first set consists of those candidates, who form part of 12091 shortlisted candidates according to whom they have been appointed pursuant to the interim orders of the Supreme Court but appointment orders have not been issued to them. The second set of persons are those, who claim that they too had acquired right of appointment under the interim orders of the Supreme Court, but were arbitrarily left out of the shortlisted 12091 candidates. Claim of both set of persons have been decided by the learned Single Judge vide the judgment dated 12.1.2024. The writ petitions filed by those, who were included in the list of 12091 persons, are allowed and to such extent the State and the Parishad are in appeal against the judgment of the learned Single Judge, dated 12.1.2024. So far as the claim of persons other than 12091 are concerned, the learned Single Judge has dismissed their petitions. These persons have also filed appeals on the ground that they had performed better than 12091 candidates, and therefore, they are entitled to be issued appointment orders. Since both the set of appeals arise out of the common judgment of the learned Single Judge, as such they have been consolidated and heard together. All the appeals are being disposed of by this common judgment.

20. We have heard Sri Kushmondeya Shahi, learned counsel for the Secretary, Basic Shiksha Parishad and Sri Ramanand Pandey, learned Additional Chief Standing Counsel for the State of U.P. Sri Ashok Khare, learned Senior Counsel assisted by Sri Indresh Dubey; Sri H.N. Singh, learned Senior Counsel assisted by Sri Sushil Kumar Pandey; Sri Radha Kant Ojha, learned Senior Advocate assisted by Sri Abdulla Kalam; Sri Rakesh Pandey, learned Senior Advocate assisted by Sri Agnihotri Kumar Tripathi; Sri Gajendra Pratap and Sri Anil Tiwari, learned Senior Advocates have appeared on behalf of the respondents/writ petitioners. Sri G.K. Singh, learned Senior Counsel assisted by Sri Seemant Singh, Sri Naveen Kumar Sharma and Sri Prabhakar Awasthi, Advocate have appeared for candidates, who claim to have scored higher marks than 12091 short listed candidates but were not included in the list of 12091 candidates and have ultimately not been appointed. Sri Kushmondeya Shahi and Sri Ramanand Pandey have been heard in opposition to the claim of persons over and above 12091 shortlisted candidates.

INTERIM ORDERS BY THE SUPREME COURT IN SHIV KUMAR PATHAK (SUPRA)

21. At the very outset, we may gainfully note that appointments of trainee teachers against 72825 advertised posts in basic schools or the claims of appointment against such vacancy emanate from the interim orders passed in the matter by the Supreme Court. The Division Bench of this Court had already directed the State of U.P. to proceed with advertisement dated 30.11.2011 and fill up all vacancies. While this Division Bench judgment was subjudice in appeal, the Supreme Court directed appointments to be made against the aforesaid vacancies. The first interim order was passed by the Supreme Court on 25.3.2014, which is reproduced hereinafter:-

"Leave granted.

Hearing expedited.

By this interim order, we direct the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in the schools pursuant to the advertisement issued on 30.11.2011 as per the directions issued by the Division Bench of Allahabad High Court in the case of Shiv Kumar Pathak & Ors. (Special Appeal (Defective) No. 237 of 2013) and connected matters as expeditiously as possible at any rate within 12 weeks' time from today.

Further, the State in the letter of appointment that will be issued to the successful candidates shall mention that their appointment is subject to the result of the civil appeals that are pending before this Court.

The appointee(s) shall not claim any equities at the time of final disposal of the civil appeals. All actions/proceedings of the State Government will be subject to the final result of these civil appeals.

SLP(C) Nos....CC 4107/14 & CC 4934/2014 Permission to file SLPs is granted.

Issue notice.

Tag with SLP(C) Nos.29390 of 2013.

Rest of the matters List all the matters along with Civil appeals arising out of Special Leave Petition Nos. 1874-1902 of 2014 after the service is complete."

22. The second interim order in Shiv Kumar Pathak (supra) was passed on 17th December, 2014, which reads as under:-

"Hearing resumed.

In course of hearing, we have thought it appropriate to pass an interim order by which the vacancies can be filled up and the academic climate in the State of Uttar Pradesh shall not suffer an unnecessary winter.

Be it noted, this Court on 25th March, 2014, had passed the following order:

"Leave granted.

Hearing expedited.

By this interim order, we direct the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in the schools pursuant to the advertisement issued on 30.11.2011 as per the directions issued by the Division Bench of Allahabad High Court in the case of Shiv Kumar Pathak & Ors. [Special Appeal (Defective) No.237 of 2013] and connected matters as expeditiously as possible at any rate within 12 weeks' time from today.

Further, the State in the letter of appointment that will be issued to the successful candidates shall mention that their appointment is subject to the result of the civil appeals that are pending before this Court.

The appointee(s) shall not claim any equities at the time of final disposal of the civil appeals. All actions/proceedings of the State Government will be subject to the final result of these civil appeals."

Despite the aforesaid order, the State has not carried out the appointment process. After hearing the learned counsel for the parties at length on various occasions, we are inclined to modify the order passed on 25th March, 2014, and direct that the State Government shall appoint the candidates, whose names have not been weeded out in the malpractice and who have obtained/secured seventy percent marks in the Teacher Eligibility Test (TET). The candidates belonging to Scheduled Caste/Scheduled Tribe/Other Backward Classes and the physically handicapped persons, shall be appointed if they have obtained/secured sixty-five percent marks. If there is any policy of the State Government covering any other category for the purpose of reservation, it may be given effect to with the same percentage. It shall be mentioned in the appointment letter that their appointment shall be subject to the result of these appeals and they shall not claim any equity because of the appointment, for it is issued on the basis of the direction passed by this Court. The letters of appointment shall be issued within a period of six weeks.

At this juncture, we must state that the advertisement was issued to fill up 72,825 vacancies in the post of Assistant Teachers, who have to impart education to students of Classes I to V. We have been apprised by the learned counsel for the respondents that there are three lacs posts lying vacant as on today. In this context, we must recapitulate the objects and reasons from the Right of Children to Free and Compulsory Education Act, 2009, which read as follows:

"The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic. The Directive Principles of State Policy enumerated in our Constitution lays down that the State shall provide free and compulsory education to all children up to the age of fourteen years. Over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education.

2. Article 21A, as inserted by the Constitution (Eighty-sixth Amendment) Act, 2002, provides for free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such manner as the State may, by law, determine.

3. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008, is proposed to be enacted which seeks to provide,-

(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfied certain essential norms and standards;

(b) 'compulsory education' casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;

(c) 'free education' means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;

(d) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and

(e) a system for protection of the right of children and a decentralized grievance redressal mechanism.

4. The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds."

Primary education can be equated to the primary health of a child. When a child is educated, the Nation marches towards civilization. No student can inculcate or cultivate education without guidance. Definitely not a child, who is supposed to get primary guidance from a teacher, for him he is like a laser beam. The State, as the guardian of all citizens and also with a further enhanced and accentuated responsibilities for the children, has a sacrosanct obligation to see that the children are educated. Almost two thousand years back, Kautaliya had stated that the parents who do not send their children to have the teachings, deserves to be punished. Similar was the climate in England almost seven centuries back. Thus, the significance of education can be well recognized. In such a situation, we cannot conceive that the posts would lie vacant, students go untaught and the schools look like barren in a desert waiting for an oasis. The teacher shall serve the purpose of oasis in the field of education. Hence, the aforesaid directions.

The competent authority shall file a compliance report, failing which they shall face the consequences as the law provides and the law does not countenance disobedience of the law and orders of the court.

Let the matter be listed on 25th February, 2015, for further hearing."

23. The third interim order in Shiv Kumar Pathak (supra) came to be passed on 25.2.2015, which reads as under:-

"This Court, on 17.12.2014, after hearing the learned counsel for the parties, apart from other directions, had issued the following direction:

"... After length has not hearing the on various occasions, we are inclined to modify the order passed on 25th March, 2014, and direct that the State Government shall appoint the candidates, whose names have not been weeded out in the malpractice and who have obtained/ secured seventy percent marks in the Teacher Eligibility Test (TET). candidates belonging to Scheduled The Caste/Scheduled Tribe/Other Backward Classes and the physically handicapped persons, shall be appointed if they have obtained/secured sixty-five percent marks. If there is any policy of the State Government covering any other category for the purpose of reservation, it may be given effect to with the same percentage. It shall be mentioned in the appointment letter that their appointment shall be subject to the result of these appeals and they shall not claim any equity because of the appointment, for it is issued direction passed by this Court. on the basis of the The letters of appointment shall be issued within a period of six weeks."

Mr. Venkataramani, learned senior counsel appearing for the State of Uttar Pradesh, has filed an affidavit sworn by the Joint Secretary, Basic Shiksha Parishad, Allahabad indicating, thus:

"3. That in view of the said order dated 25.03.2014 passed by this Hon'ble Court, the State Government vide its order dated 27.06.2014 and 1.7.2014 decided to make the selection and appointment against 72,825 post of trainee teachers in parishadiya primary schools initiated in the year 2011; and accordingly the counseling have been done in following manner :

(i) Ist counseling 29.08.2014 to 31.08.2014

(ii) IInd Counseling 22.09.2014 to 30.09.2014

(iii) IIIrd counseling 05.11.2014 to 13.11.2014

(iv) Ivth counseling 09.01.2015 to 14.01.2015

4. That pursuant to order dated 17.12.2014 of this Hon'ble Court only the candidates who have secured 70% (105 marks) amongst general category and 65% (97.5 marks) amongst the reserved category have been permitted to participate in the said counseling.

5. That amongst the candidates who ave been permitted to participate in the counseling during the period of aforementioned schedule have also been offered the appointment letters and they have also joined post in their institutions.

6. That some of the candidates were repeatedly offered appointment letters from different districts on the account of their participation in counseling in such district but it is clarified that here that they have been permitted to join their post only once. Accordingly although 83983 appointment letters were issued, however, the joining has been taken only by 43651 candidates. The process of filling up the remaining 29174 vacancies is also on."

Relying on the said affidavit, it is put forth by Mr. Venkataramani, learned senior counsel, that the State may be granted four weeks time to issue public notice to the candidates to join in the vacancies failing which the Court may issue appropriate directions.

At this juncture, Mr. V.K. Sinha, learned senior counsel, Mr. V.K. Sharma, Mr. Ajay Jain, Mr. Jayant Mehta, Mr. Arvind Shrivastava, Mrs. Rachana Shrivastava, Mr. Abhishek Shrivastava, learned counsel, submitted that this Court may ask the State Government to file an affidavit about the number of vacancies still available. Mr. Venkataramani, learned senior counsel, submitted that an affidavit to that extent will be filed by the next date.

At this juncture, we may note with profit that we have fixed the percentage for persons belonging to Schedule Castes/Schedule Tribes/Other Backward Classes at 65%. It is urged by Mr. Sharma and learned counsel whose names appear hereinabove, that the persons who have obtained 60% marks should also be considered. As we find, as of today, 29174 vacancies are available to be filled up. If the persons belonging to Scheduled Casts/Scheduled Tribes/Other Backward Classes have secured 65% marks and their number meets the requirement, the vacancies meant for their quota, shall be filled up by taking into consideration the said percentage. If the candidates of that percentage are not available, the State shall offer appointments to the candidates who have secured 60% of the marks. Be it noted, if the candidates belonging to Scheduled Castes/Scheduled Tribes/Other Backward Classes who have secured 65% of the marks are available, the candidates who have secured 60% of the marks cannot be llowed to compete with them.

The State Government is directed to issue the public notice within four weeks from today requiring the selected candidates in respect of 29174 vacancies to join and if any candidate fails to join within the stipulated period provided in the public notice, he will forefeit his right of appointment in this selection. To clarify, we may add that the public notice shall be published in widely circulated newspapers and the candidates shall be given three weeks time to join failing which the conditions prescribed hereinabove shall follow.

At this juncture, we have been apprised by the learned counsel for the respondents that some candidates who have applied in more than one districts and secured the requisite marks which have been fixed by this Court on the previous occasion, have joined in two posts, though not working. The competent authority of the State Government shall verify the same and restrict the appointment to one place and count the said vacancies and fill up the same by following the critaria fixed by us.

We will be failing in our duty if we do not take note of the submission which has been advanced before us that though certain posts are reserved in the category of horizontal quota, no steps have been taken to fill up the said. Regard being had to provisions contained in the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rules in vogue in the State of Uttar Pradesh, we direct that the posts in those categories shall be filled up as per the Rules relating to relaxation in respect of the said category. That apart, if any quota and relaxation are available for any other horizontal category, that may also be applied.

Let the matter be listed on 22.04.2015. It is hereby made clear that it shall be finally heard on that day and no adjournment shall be granted to any counsel."

24. Next interim order in the matter was passed by the Supreme Court on 27.7.2015, which is reproduced hereinafter:-

"This Court on 6th July, 2015, in I.A. Nos.2 & 3 in Writ Petition (C) No.167 of 2015, had passed the following order:

"Hearing resumed.

Let the matter be listed for further hearing at 2.00 p.m. on 27.07.2015.

Mr. Venkataramani, learned senior counsel for the State shall file a convenience volume. He shall also file the Rules that is in vogue in other States. We have given the direction for production of the Rules solely for the purpose of perusal.

I.A. NOS.2 & 3 IN WRIT PETITION (CIVIL) NO.167 OF 2015 Mr. Anand Nandan, learned counsel for the applicant, has submitted that Shiksha Mitras who have not passed the Teachers Eligibility Test (TET) have been appointed as teachers in schools contrary to the guidelines issued by the NCTE and also contrary to the Rules framed by the State. He has drawn our attention to the letter No.2253/79-5-2014-282/98 dated 19th June, 2014 issued by the Secretary, Basic Education, Government of U.P. On a scrutiny of the same, we find that there is no mention of passing of the eligibility test. However, there is a direction for appointment of Shiksha Mitras in the post of Assistant Teachers in schools being run by the U.P. Basic Education Council.

The learned counsel for the State shall file an affidavit in respect of the said letter within ten days hence. The affidavit shall contain the details as to how many Shiksha Mitras have been appointed without passing the TET.

The Secretary and the Special Secretary of the Basic Education, Government of UP shall remain personally present at 2.00 p.m. on 27.07.2015 failing which, they will be liable for contempt of this Court. Needless to emphasise, the State Government shall not appoint any Shiksha Mitras, who have not qualified in the TET on the post of the Assistant Teacher.

Dasti order permitted."

It is submitted by Mr. K.K. Venugopal, learned senior counsel appearing for the Association of Shiksha Mitras that there is no requirement on their part to appear in the entrance examination, as per the rules framed by the N.C.T.E. Mr. Amit Sibal, learned senior counsel, would contend that N.C.T.E. rules and certain amendments exempt the Shiksha Mitras from appearing in the examination.

The aforesaid submissions have been countered by Mr. Anand Nandan, learned counsel appearing for the applicants in the interlocutory applications and other counsel appearing for the persons who have qualified in the Teachers Eligibility Test (TET).

At this juncture, we have been apprised at the Bar that number of cases are pending in the High Court of Allahabad pertaining to the appointment of Shiksha Mitras. We have also been apprised that some writ petitions are pending at Allahabad and some are pending at Lucknow Bench of the High Court.

Regard being had to the aforesaid submission, we think it appropriate that all the matters pending before the High Court relating to Shiksha Mitras shall be heard by a Full Bench at Allahabad. We would request the Chief Justice of the High Court of Allahabad to constitute a Bench and preside over the Bench. The writ petitions which are pending before the Lucknow Bench of the High Court shall be transferred to Allahabad so that there can be singular judgment. We would request the Chief Justice to dispose of all the writ petitions after transferring them, within two months.

The interim order passed by us on 6th July, 2015, shall remain in force for a further period of ten weeks.

Be it clarified, whatever we have said by our interim order should not be placed reliance upon by any of the sides before the High Court as that was really an interim order and we have not expressed any opinion on the issue. Needless to say, after the judgment is rendered by the High Court, the aggrieved parties are at liberty to challenge the same, as advised in law. By virtue of this order, all the interlocutory applications relating to Shiksha Mitras stand disposed of.

Presently, we shall proceed to deal with our initial order passed on 25th February, 2015, in connection with the appointments. It reads as under:

"This Court, on 17.12.2014, after hearing the learned counsel for the parties, apart from other directions, had issued the following direction :

"... After length has not hearing the on various CA 4347-4375/14 occasions, we are inclined to modify the order passed on 25th March, 2014, and direct that the State Government shall appoint the candidates, whose names have not been weeded out in the malpractice and who have obtained/ secured seventy percent marks in the Teacher Eligibility Test (TET). candidates belonging to Scheduled The Caste/Scheduled Tribe/Other Backward Classes and the physically handicapped persons, shall be appointed if they have obtained/secured sixty-five percent marks. If there is any policy of the State Government covering any other category for the purpose of reservation, it may be given effect to with the same percentage. It shall be mentioned in the appointment letter that their appointment shall be subject to the result of these appeals and they shall not claim any equity because of the appointment, for it is issued direction passed by this Court. on the basis of the The letters of appointment shall be issued within a period of six weeks."

Mr. Venkataramani, learned senior counsel appearing for the State of Uttar Pradesh, has filed an affidavit sworn by the Joint Secretary, Basic Shiksha Parishad, Allahabad indicating, thus :

"3. That in view of the said order dated 25.03.2014 passed by this Hon'ble Court, the State Government vide its order dated 27.06.2014 and 1.7.2014 decided to make the selection and appointment against 72,825 post of trainee teachers in parishadiya primary schools initiated in the year 2011; and accordingly the counseling have been done in following manner :

(i) Ist counseling 29.08.2014 to 31.08.2014

(ii) IInd Counseling 22.09.2014 to 30.09.2014

(iii) IIIrd counseling 05.11.2014 to 13.11.2014

(iv) IVth counseling 09.01.2015 to 14.01.2015

4. That pursuant to order dated 17.12.2014 of this Hon'ble Court only the candidates who have secured 70% (105 marks) amongst general category and 65% (97.5 marks) amongst the reserved category have been permitted to participate in the said counseling.

5. That amongst the candidates who ave been permitted to participate in the counseling during the period of aforementioned schedule have also been offered the appointment letters and they have also joined post in their institutions.

6. That some of the candidates were repeatedly offered appointment letters from different districts on the account of their participation in counseling in such district but it is clarified that here that they have been permitted to join theirpost only once. Accordingly although 83983 appointment letters were issued, however, the joining has been taken only by 43651 candidates. The process of filling up the remaining 29174 vacancies is also on."

Let the matter be listed on 22.04.2015. It is hereby made clear that it shall be finally heard on that day and no adjournment shall be granted to any counsel."

It is submitted by Mr. Prashant Bhushan, learned counsel appearing for the petitioners in Writ Petition © No.89 of 2015, that persons who were declared failed in the entrance examination, after the order passed, for some unfathomable reason, have been declared to have passed and some of them have been allowed to be appointed. Mr. Prashant Bhushan, learned counsel, undertakes to file the additional affidavit containing the particulars relating to the aforesaid aspect.

Mr. H.L. Gupta, Secretary, Basic Education, Uttar Pradesh, who is present in Court today, shall file a reply duly supported by personal affidavit to the said assertions and also to the additional affidavit to be filed by Mr. Bhushan, within four weeks from today.

Let the matter be listed on 2nd November, 2015 at 2.00 p.m. The Secretary and the Special Secretary, Basic Education, Uttar Pradesh, shall remain personally present on the next date of hearing.

At this juncture, we may note that Mr. R. Venkataramani, learned senior counsel, who has been appearing since beginning in this matter for the State of U.P., has submitted that some other counsel will be appearing for the State in the case. Be that as it may, we request Mr. R. Venkataramani, learned senior counsel, to assist the Court in the matter."

25. In the series of interim orders that came to be passed in Shiv Kumar Pathak (supra), the Supreme Court issued following directions on 2.11.2015:-

"Heard Mr. Gaurav Bhatia, learned Additional Advocate General for the State of Uttar Pradesh and Mr. R. Venkataramani, learned senior counsel (Amicus Curiae).

It is submitted by Mr. Bhatia that keeping in view the order dated 27.07.2015, as against 72825 posts advertised, 43,077 candidates have been appointed, who, after completion of the training till September 2015, are working in praesenti. It is also submitted that 15,058 candidates are undergoing training out of which 8,500 shall be appearing in the examination on 16th and 17th November, 2015 and the rest will be appearing in the examination after completion of their training. In the result around 14,640 posts still remain vacant.

At this juncture, number of counsel have raised a grievance that there are number of candidates who have secured more than 70% marks in TET examination in the general category and the lower percentage for other categories as per our earlier order and yet they are not appointed. At this juncture, learned Additional Advocate General submitted that some of the candidates might not have been appointed as they may not have been qualified otherwise under the NCTE Rules. We do not intend to interpret on the said point, as advised today.

However, the persons who are claiming that they are entitled to the benefit on the basis of the percentage fixed by the earlier order dated 27.07.2015 shall submit their applications/representations before the Secretary, U.P. Basic Education Board (Board), Allahabad within one week hence and the said authority shall constitute a Committee to verify their percentage of marks as well as criteria by which the persons who have already been selected and put the same on the website as well as due intimation be given to the applicants. If there is parity they shall be extended the benefit of our order forthwith. The said exercise shall be completed within three weeks.

Be it stated, in our earlier order, we had requested the learned Chief Justice of the High Court of Allahabad to constitute a Full Bench and dispose of the writ petitions after transferring them to himself. The Full Bench had delivered the judgment on 12.09.2015 which has been placed before us. The Full Bench has opined that Shiksha Mitras cannot take the benefit as per the law in the field. We do not intend to comment on that as we have been apprised at the Bar that certain special leave petitions are being filed challenging the said order. Needless to say, the legal propriety of the said order of the Full Bench shall be dealt with in the special leave petitions.

Mr. Rakesh Dwivedi, the learned senior counsel, would submit that he represents the set of the people who are qualified as per the prevalent rules and they should have been appointed had the High Court not struck down the Rules as ultra vires. Ordinarily, we would have dealt with this order making some kind of interim arrangement but we do not intend to get into the same now as we have been apprised that there are huge number of candidates and there will be a confusion. Be that as it may, the main thrust of the matter will be gone into on the next date of hearing.

A submission has been raised by learned counsel for the petitioner in Writ Petition No.167 of 2015 that because of the vacancies that are in vogue in State of U.P., education is impaired despite the command under Article 21A of the Constitution. We have been told that there are more than 4,00,000 vacancies. Mr. Anand Nandan, learned counsel appearing for the writ petitioners has pointed to para 2 of the counter affidavit to his writ petition filed by the Secretary, Basic Education, Govt. of U.P., Lucknow. The said paragraph reads as follows :

"2. That in reply to the contents of paragraph nos.2 and 3 of the Application it is stated that, TET Examination has been introduced to maintain a uniform standard of education throughout the Country by introducing it as the essential eligibility for appointment of Assistant Teacher in Basic Schools. At present 1,10,376 Primary Schools are being run by the Parishad, in the State of Uttar Pradesh. Under the Right to Education Act 2009, the number of teachers required to maintain the student teachers ratio is 4,86,182. At present 1,77,866 Assistant Teachers are working in the aforesaid circumstances, there is an immediate need of 3,08,316 Assistant Teachers in the various Primary Schools in the State to fulfill the aforesaid conditions contained in the Right to Education Act 2009 the Government of Uttar Pradesh submitted a proposal through their letter dated 03.01.2011 before the National Council for Teachers Education requesting them to conduct a full fledged training programme for graduate Shiksha Mitra. The aforesaid proposal of the State Government was approved by the National Council for Teachers Education through their letter dated 14.01.2011."

As against the said assertion, there has been some cavil raised by Mr. Abhishek Shrivastava, learned counsel appearing for the Board.

In this regard, we require Mr. Bhatia to explain to us about the number of vacancies.

At this juncture, we must formulate the issues that the learned counsel should address while arguing the matter on the next date, for we are not inclined any more to deal with the matter as interim measures. The issues are as under :

a) Whether the NCTE Guidelines fixing the minimum qualification are arbitrary and unreasonable?

b) Whether the marks obtained in the TET Examination is the sole criterion for filling up the vacancies?

c) Whether the High Court is justified in declaring the 15th Amendment brought in on 31.08.2012 to the U.P. Basic Education (Teachers) Service Rules, 1981?

d) Assuming, the guidelines framed by the NCTE are treated as intra vires, the question will be what interpretation would be placed by the Court on the concept of weightage as mentioned in the guidelines of the NCTE?

Needless to say, if any ancillary issue arises, the same shall also be addressed to. It is hereby made clear that except these issues, no other submissions as regards the interim arrangement shall be entertained.

The personal presence of the authorities stand dispensed with for the present.

Let the matters be listed on 07.12.2015 at 2.00 p.m. Needless to say, if the matter is not completed on that day, it will continue at 2.00 p.m. on 08.12.2015."

26. The order passed by the Supreme Court on 2.11.2015 clearly noticed that as against 72825 posts advertised, 43077 candidates have been appointed, who, after completion of the training till September, 2015, were working in praesenti. The Supreme Court was also informed that 15058 candidates are already undergoing training, out of which 8500 candidates shall be appearing in the examination on 16th and 17th of November, 2015 and the rest will be appearing in the examination after completion of their training. Right of appointment in favour of 43077 + 15058 candidates was thus clearly acknowledge by the Supreme Court, on the basis of statement made by the Additional Advocate General for the State before the Supreme Court.

27. It is at this juncture that a grievance was raised by a number of candidates, who had secured more than 70% marks in TET examination in the general category and the lower percentage for other categories, yet they were not appointed. On behalf of State, it was stated that some of these persons may not be qualified. The Supreme Court in order to deal with such claim of appointment permitted representations to be made before the Secretary, Basic Education Board, Allahabad, who in turn was directed to constitute a committee to verify their percentage of marks as well as criteria by which the persons were already selected and to put them on the website as well as due intimation be given to the applicants. The Court also directed benefit of previous interim orders to be extended to those who were at par with appointed trainee teachers. This exercise was to be completed within three weeks. The Supreme Court also formulated various questions for consideration in pending appeals.

28. The matter was next heard by the Supreme Court on 7.12.2015, when following orders were passed in Shiv Kumar Pathak (supra):-

"CA Nos. 4347-4375 and 4376/2014, SLP(C) No. 62, 1672, 1674, 11671 and 11673/2014, SLP (C) No.14386/2015, SLP (C)......CC No. 10408/2014, WP(C) No. 135, 167 and 89/2015 and CONMT.PET.(C) No. 199/2015 In C.A. No. 4347-4375/2014 and CONMT.PET.(C) No. 399/2015 In C.A. No. 4347-4375/2014 On 2.11.2015, after hearing the learned counsel for the parties, this Court noted the stand of Mr. Bhatia which is to the following effect :-

"It is submitted by Mr. Bhatia that keeping in view the order dated 27.07.2015, as against 72825 posts advertised, 43,077 candidates have been appointed, who, after completion of the training till September 2015, are working in praesenti. It is also submitted that 15,058 candidates are undergoing training out of which 8,500 shall be appearing in the examination on 16th and 17th November, 2015 and the rest will be appearing in the examination after completion of their training. In the result around 14,640 posts still remain vacant."

Thereafter a grievance was made with regard to the people obtaining higher percentage not being appointed. The said grievance was taken note of in the following manner :

"At this juncture, number of counsel have raised a grievance that there are number of candidates who have secured more than 70% marks in TET examination in the general category and the lower percentage for other categories as per our earlier order and yet they are not appointed. At this juncture, learned Additional Advocate General submitted that some of the candidates might not have been appointed as they may not have been qualified otherwise under the NCTE Rules. We do not intend to interpret on the said point, as advised today.

However, the persons who are claiming that they are entitled to the benefit on the basis of the percentage fixed by the earlier order dated 27.07.2015 shall submit their applications/representations before the Secretary, U.P. Basic Education Board (Board), Allahabad within one week hence and the said authority shall constitute a Committee to verify their percentage of marks as well as criteria by which the persons who have already been selected and put the same on the website as well as due intimation be given to the applicants. If there is parity they shall be extended the benefit of our order forthwith. The said exercise shall be completed within three weeks."

Be it stated that on that occasion, four issues were framed to be dealt with at the time of final hearing.

It is submitted by Ms. K. Sharda Devi, learned counsel that the names of the appointees have not yet been put on the website. Mr. Vijay Bahadur Singh, learned Advocate General for the State of U.P. and Mr. Gaurav Bhatia, learned AAG undertake that the same shall be put on the website within a week hence.

At this juncture, we may state that Mr. Bhatia, learned AAG submitted that in pursuance of the direction of this Court on the earlier occasion and prior to that more than 75,000 representations were received and after scanning the same, the State Government has found 12,091 persons eligible for being appointed subject to verification of antecedents. Let the said persons be appointed subject to the said verification within six weeks hence.

At this juncture, Mr. Rakesh Dwivedi, learned senior counsel, Mr. Neeraj Jain, Mr. Siddharth Dave, Mr. Sanjay Hegde, Mr. Vikas Singh, Mr. Anand Nandan, Mr. Arvind Srivastava, Mr. Ajay Jain, Ms. Rachana Shrivastava, Mr. Avnish Singh, Mr. D.K. Tiwary, Mr. Rajiv Dubey, Ms. S. Janani, Mr. Ashok Kuamr Sharma and Mr. Manoj Prasad learned counsel submit that they represent approximately 1100 people and some arrangement should be made for them. On being asked, Mr. Vijay Bahadur Singh, learned Advocate General submitted that the State has no objection to offer them appointment on ad hoc basis subject to result of the special leave petitions. Let that be done within four weeks hence. Needless to say, no right shall accrue in their favour because of this order.

Let the matter be listed for final disposal on 24.02.2016 at 2.00 p.m. The hearing shall continue on 25.02.2016 and 26.02.2016 at the same time.

S.L.P.(C)...CC Nos. 21708-21709, 20837, 20914, 20953, 20875, 20894, 21017, 21265, 21277, 20690, 21052, 20651, 21118, 21184, 21085-21089, 21376, 21392, 21589, 21056/2015 and SLP(C) Nos. 32599, 33328-33339, 33235 and 34093/2015 Permission to file the special leave petitions stands allowed.

Heard Mr. Dushyant Dave, learned senior counsel along with Mr. Gaurav Bhatia, learned counsel for the petitioner.

Issue notice returnable within four weeks.

Dasti, in addition, is permitted.

The State shall make a paper publication which is widely published I the State of Uttar Pradesh so that the persons who were the petitioners before the High Court shall be aware of the pendency of these cases before this Court.

Learned counsel for the State shall file a convenience volume which shall contain all the pleadings that were filed before the High Court in Writ Petition No.34833 of 2014 so that no fresh pleadings are required to be filed.

Let this matter be heard along with Civil Appeal No.4347-4375 of 2014 on 24.02.2016 for final disposal. As indicated by learned counsel for the petitioners, they will not seek any adjournment.

As an interim measure, there shall be stay of the operation of the impugned judgment till the next date of hearing."

29. The Supreme Court took note of the statement of the counsel for the State that pursuant to the previous directions of the Court 75000 representations were received and upon examining such representations, the State Government has found 12091 persons eligible for being appointed subject to verification of antecedents. A direction was thus issued for these persons to be appointed subject to their verification within six weeks.

30. In compliance of the directions issued by the Supreme Court to appoint 12091 shortlisted candidates subject to verification of antecedents a decision was taken by State vide Government Order dated 3.2.2016 to hold fresh counselling throughout the State on 10.2.2016 by all the District Basic Education Officers. Advertisements were published in all districts on 6.2.2016 and 8.2.2016 where posts were lying vacant for conduct of counselling, by indicating the cut-off marks in respective category and also specified the available vacancies. Counselling was held on 10.2.2016 wherein about 4000 candidates appeared and going by the cut-off and the available vacancy 391 candidates were actually appointed.

31. On the next date i.e. 24.2.2016 a grievance was raised by large number of persons by filing interlocutory applications, special leave petitions and writ petitions before the Supreme Court regarding non-consideration of claim of such persons. The Supreme Court took note of such grievances raised before it and directed all interlocutory applications, writ petitions, special leave petitions or civil appeals filed till the date to be considered by the State. A report was called in respect of such claims by indicating the marks obtained by each of the candidates and also disclose how many persons would be eligible to be appointed on ad-hoc basis. The order of the Court dated 24.2.2016 reads as under:-

"Having heard learned counsel for the parties, we are inclined to continue the order of stay as far as the continuance of the Shiksha Mitras are concerned. The stay order shall remain operative until further orders.

Registry is directed to register all the interlocutory applications filed in the appeals, special leave petitions or writ petitions. In these interlocutory applications, the grievance which has been canvassed is issue that though they stand on the similar footing with the applicants which have been granted the benefit by the previous order dated 07.12.2015, the State has not considered their cases.

Let copies of the interlocutory applications be served on Mr. Gaurav Bhatia within a week hence. It is directed that the State shall consider the applicants in the said interlocutory applications or the names that find place in the said interlocutory applications on the parameters which were fixed on the last occasion. The said exercise shall be completed within ten weeks hence.

At this juncture, it is submitted by Mrs. K. Sharda Devi, learned counsel, that she has not filed any IA but she represents some of the respondents in Civil Appeal Nos.4347-4375 of 2014. The learned counsel is granted leave to serve a list of the names on Mr. Gaurav Bhatia within a week hence and the State shall do the needful within the period as stipulated hereinabove.

We will be failing in our duty, if we do not note the grievance made by various parties who have filed different interlocutory applications, special leave petitions and writ petitions before this Court. Additionally, there is a grievance that parties who are respondents in the civil appeals or the special leave petitions have not been considered for some technical reason or the other. Regard being had to the same, we permit the learned counsel appearing for the applicants in the interlocutory applications petitioners/ respondents in the writ petitions, special leave petitions or civil appeals to give their respective lists to Mr. Gaurav Bhatia within a week hence. The interlocutory applications, writ petitions, special leave petitions or civil appeals which have been filed till today and have been directed to be registered shall only be considered by the State and the names of the respondents in the special leave petitions or the civil appeals shall be considered for the present.

The competent authority of the State Government shall consider their cases individually on the parameters of the last order and submit a report. The report shall indicate the marks obtained by each of the candidates and also shall indicate how many persons would be eligible to be appointed on ad hoc basis.

We have been apprised by Mr. Sharan learned senior counsel, Mr. Vivek Singh, Mr. Amit Pawan, Mr. Ajay Shrivastava and some other learned counsel that though some of the applicants have been appointed, they are not being paid salary. Mr. Bhatia shall look into the same and apprise this Court on the next date of hearing.

We may make it clear that the cases relating to Shiksha Mitras be listed on 11th July 2016 and any interlocutory application connected with Shiksha Mitras be also listed along with the cases of Shiksha Mitras on that day.

All other cases be listed on 09.05.2016."

32. It transpires that large number of applications for interim relief etc. as also petitions were then placed before the Court for consideration on the next date of hearing. The Court acknowledged the grievance raised by such persons that the orders of the Court dated 7.12.2015 and 24.2.2016 have not been complied with. A direction was issued to the Secretary of the concerned department to file his affidavit and also indicate any real difficulty in complying with the orders. The Supreme Court further made it clear that stand of the State shall be addressed only at the stage of final hearing. The order passed by the Court on 24.8.2016 is reproduced hereinafter:-

"The special leave petitions and writ petitions which relate to the grievance of Shiksha Mitras be listed on 23.11.2016.

If any order has been passed requiring the State to file any affidavit, the State shall do so within four weeks hence.

Needless to say, all other contesting parties are entitled to file their affidavits.

This Court on 7.12.2015 and 24.2.2016 had passed certain interim orders. Learned counsel for the petitioners, who are the beneficiaries of the said orders, have raised the grievance that the orders passed by this Court have not yet been complied with by the State.

Mr. Dinesh Dwivedi, learned senior counsel shall file an affidavit of the competent authority, preferably the Secretary of the Department concerned, how they are going to comply with them or is there any real difficulty in complying with them. Be it clarified, the stand of the State shall be addressed only at the time of final hearing.

Be it stated, in course of hearing we have found that a series of Interlocutory Applications seeking similar reliefs have been filed. Some of the learned counsel appearing for the parties submitted that regard being had to the earlier orders, especially order dated 24.2.2016, the matter shall be heard on merits.

We have already adjourned the special leave petitions and writ petitions pertaining to Shiksha Mitras to 23.11.2016. In our considered opinion, this batch of matters should be heard earlier than that.

In view of the aforesaid, let the matters be listed on 5.10.2016. The matter shall be taken up as the first case on the Board. When the matter shall be taken up for final hearing, all status reports shall be taken into consideration.

Let a copy of Writ Petition No.102 of 2016 be served on Mr. Dinesh Dwivedi, being assisted by Mr. Abhisht Kumar, learned counsel for the State so that he will be in a position to obtain instructions in the matter.

Civil Appeal Nos.4347-4375 of 2014 filed by the State shall be heard. Registry is directed to list the matters accordingly on the date fixed, that is, 05.10.2016."

It is thereafter that all the pending civil appeals were finally heard and disposed of vide judgment and order dated 25.7.2017. A Government Order dated 24.4.2018 was then issued by the State Government concluding the process of appointment pursuant to the advertisement dated 30.11.2011. It is clarified in the Government Order that no further selection/appointment can be made on the vacant 6170 posts of trainee teachers as these vacancies belong to various reserved categories.

WRITS BEFORE HIGH COURT ALLEGING DISOBEDIENCE OF INTERIM ORDERS PASSED BY THE SUPREME COURT IN SHIV KUMAR PATHAK (First Round)

33. A bunch of writ petitions with leading writ petition filed by Akhilesh Kumar Pandey and others Vs. State of U.P. and others, came to be filed before this Court, raising a grievance that under the interim orders of the Supreme Court, the writ petitioners were entitled to be appointed as trainee teachers but appointment orders have not been issued to them. All the writ petitions were heard and ultimately dismissed by learned Single Judge vide order dated 20.9.2017. This judgment is reported in 2018 (4) ADJ 663.

34. The aforesaid judgment in Akhilesh Kumar Pandey and others came to be challenged before the Division Bench of this Court in Special Appeal Defective No.582 of 2017, which too was dismissed on 27.11.2017. Yet, another special appeal i.e. Special Appeal Defective No.593 of 2017 arising out of the judgment of learned Single Judge was dismissed on 8.12.2017, relying upon the orders of the Supreme Court in Shiv Kumar Pathak (supra).

CONTEMPT BEFORE THE SUPREME COURT

35. Dissatisfied with denial of appointment pursuant to interim orders passed in Shiv Kumar Pathak (supra), the contempt petitions came to be instituted before the Supreme Court of India in May, 2018. Grievance raised in contempt specifically included the claim of 12091 candidates, who were declared to be qualified for appointment, yet they were not appointed by the State. This aspect of the matter has been noticed in para 6 of the order passed by the Supreme Court in Contempt Petition (C) Nos.1332-1360 of 2018 (Sanjai Kumar and others Vs. Dr. Prabhat Kumar and others), decided on 13.12.2019, which is reproduced hereinafter:-

"6. Sometime in May, 2018 present Contempt Petitions were filed submitting inter alia that in terms of the interim orders issued by this Court which merged in the judgment and final order dated 25.07.2017, the candidates who had secured more than 70% marks in General Category and 65% marks in Reserved Category were required to be appointed; though the State made clear representation that the qualified persons would be appointed, it did not appoint the Contempt Petitioners and as such the orders passed by this Court were violated. It was submitted that the State Government had incorrectly calculated the figure of 66,655; that as recorded in the order dated 07.12.2015, there was no objection to issue appointment orders in respect of 12,091 candidates and yet the State had not issued appointment orders to the concerned candidates, including Contempt Petitioners. It was further submitted that the Contempt Petitioners were part of the list of 12,091 candidates that was officially declared and yet they were completely sidelined by the State."

36. Notices were issued in contempt by the Supreme Court on 4.10.2018. The contempt order of the Supreme Court would reveal that category-wise chart was prepared by the State and the respective parties were allowed to make submissions on the basis of that chart. This fact is clearly noticed in the contempt judgment of the Supreme Court dated 13.12.2019. Para 8 of the judgment of the Supreme Court is reproduced hereinafter:-

"8. The order dated 29.01.2019 passed by this Court noted the fact that a category wise chart was presented by the State and the respective parties were allowed to make submissions on the basis of that Chart. Next order dated 27.02.2019 noted the submissions of the learned counsel for the Contempt Petitioners about certain irregularities in the Chart and the State was called upon to explain the position. The order was to the following effect: -

"Pursuant to last order dated 29.01.2019, a chart has been placed by learned counsel for the State of Uttar Pradesh for perusal of this Court. At the same time, case of a candidate named Anuradha Gupta has been placed by way of illustration by Mr. Siddharth Dave, learned counsel for the contempt petitioners.

According to the illustration Ms. Anuradha Gupta born on 25.09.1980 had secured 101 marks in TET examination and had also participated in the counselling in respect of District Mirzapur. These facts are not disputed by the learned counsel for the respondent-State. The illustration indicates that 25 candidates against category "female backward class - Arts" had also secured 101 marks and all of them are juniors in age to said Anuradha Gupta.

It is also accepted by the respondent-State that if two candidates are at the same level of marks, the governing criteria is to select that person who is senior in age. Going by the criteria, prima facie, Anuradha Gupta ought to have been selected but she was not. And all those 25 candidates who had secured same marks but were juniors in age, were selected.

At the request of Ms. Swarupama Chaturvedi, learned counsel for the State, we adjourn the matter for three weeks so that all such cases can be comprehensively looked into and a report can be presented before this Court.

In order to facilitate the exercise, we give liberty to all the learned counsel appearing for various candidates to give the details of such candidates who had appeared for counselling in one or more districts, where someone with lesser number of marks or junior in age (though had secured same marks) has been selected. A copy of the chart given by Ms. Chaturvedi shall be handed over to Mr. Siddharth Dave from whom copies be obtained by all the other learned counsel. If there be any such illustrations, the details and data in that behalf shall be furnished to Ms. Chaturvedi, learned counsel for the State within two weeks from today. No case shall thereafter be entertained. The state authorities can thereafter check every such illustration and see whether the candidates in question would actually fall in the zone of selection or not. A comprehensive report shall thereafter be presented before this Court."

37. The contempt matter was heard by the Supreme Court on different dates. A comprehensive affidavit was filed on 5.7.2019 on behalf of the Department of Basic Education, Government of Uttar Pradesh in compliance of the orders passed by the Supreme Court on 27.2.2019 in contempt petition. Further directions were issued in contempt on 22.7.2019, calling for further affidavits in respect of different claims put-forth by the Supreme Court. The order of the Supreme Court in the contempt matter dated 22.7.2019 is extracted in para 9 of the final judgment of the Supreme Court in contempt, which is reproduced hereinafter:-

"9. The responses were thereafter filed and the matter was heard on 22.07.2019. After recording submissions of the parties, the State Authorities were called upon to file an appropriate affidavit as under:-

"Thus, according to the State Government, after considering 75,000 odd representations it had found 12091 candidates to be eligible for appointment, subject to verification of antecedents.

It appears that the process that was undertaken however did not result in giving appointment orders to all 12091 candidates. As stated in para 21 of the affidavit dated 01.10.2016, out of this body of 12091 candidates, only 391 candidates came to be appointed as the others did not take part in the selection process or had not opted for certain Districts or could not be selected going by the cut off for the concerned Districts.

The affidavit thus stated that though opportunity was given to all 12091 candidates for counseling, the State could fill up only 391 posts. The affidavit further stated that one more opportunity was given by the State so that any candidate who was left out could ventilate his grievance and the advertisement was accordingly published on 06.02.2016. The affidavit then stated that a further step was undertaken by the State and another advertisement was published on 08.02.2016 giving an opportunity to any candidate who was left out from being considered when the list of 12091 candidates was formalized. Para 25 of the affidavit stated as under:

"25. That as per the advertisement dated 30.11.2011 there were 72825 vacancies and till dated 64257 vacancies have been filled up and in addition to it, appointment letters are being issued in respect of 1536 posts, as per the parameters fixed by this Hon'ble Court and following the procedure prescribed in the recruitment Rules. The remaining vacancies belong to special horizontal reservation categories of handicapped persons, Dependants of Freedom Fighters, ex-servicemen and also the scheduled caste and scheduled tribe candidates and these remaining vacancies cannot be filled up by the candidates of any other category.

It is pertinent to mention that 862 candidates who were given ad hoc appointment on the basis of order of this Hon'ble Court dated 07.12.2015, are not included in the 64257 filled up vacancies and also the 1536 posts against which appointment letters are being issued."

The matter was thereafter heard in April, 2017 and final judgment was pronounced in 2017.

Mr. Pallav Sishodia, learned senior advocate appearing for the State submitted that the stand so taken in the affidavit dated 01.10.2016 was never controverted by any of the candidates nor any grievance was projected on behalf of them. Mr. Sishodia submits that the grievance was raised more than a year after disposal of the matter in July, 2017.

Mr. Siddharth Dave, Mr. Ajit Sinha, Mr. V. Shekhar, Ms. V. Mohana and Mr. N.K. Mody, learned Senior Advocates appearing on behalf of some of the candidates submitted that the figures coming forth from the aforesaid orders dated 2.11.2015 and 7.12.2015 were completely at variance with the contents of the affidavit. It was submitted that if 43777 candidates were already appointed and 15058 were undergoing training as reflected in the order dated 2.11.2015, it meant that as on 2.11.2015, 58,135 candidates were already given appointments or were undergoing training. The vacancy situation projected on 2.11.2015 at 14640 was thereafter crystalised to the number of 12091 who were found to be eligible in all respects. If out of 12091 only 391 candidates were appointed, it would not be possible for the State Government to indicate in the affidavit that 64257 persons were already given appointment. In that situation, the number of candidates who were appointed would be 58135 plus such number of candidates as were drawn from the list of 12091 candidates.

Though we cannot disregard the fact that the challenge has been raised more than a year after the final judgment, we call upon the State Government to indicate on affidavit by a competent person (the name of Ms. Renuka Kumar, Additional Chief Secretary [Basic Education] Govt. of U.P., Lucknow, was suggested by the learned counsel for the State) giving the following details:

(a) District-wise break-up of the last candidates in various categories in the District who were given appointments by October, 2016?

(b) Whether any fresh appointments were effected after October, 2016?

(c) Whether any person other than the one who satisfied the requirement laid down by this Court in its order dated 27.7.2015 as modified by further orders of this Court was given appointment? If so, the name, age, and marks obtained by every such candidate as against the cut off.""

38. The above order of the Supreme Court clearly noticed that though claims were put-forth after expiry of one year (limitation provided under Section 20 of the Contempt of Courts Act, 1971) yet such grievance was not only entertained, but the Additional Chief Secretary of the State was called upon to file her personal affidavit clarifying factual aspects noticed in the order of the Court.

39. The Supreme Court took specific note of the claim put-forth on behalf of 12091 candidates in the context of complaint made of large scale infraction of interim order passed by the Supreme Court. The Supreme Court ultimately returned a categorical finding that there has not been any violation of any of the orders passed by the Supreme Court alleged in the contempt petitions or otherwise. In para 10 of the contempt judgment dated 22.7.2019, the Supreme Court took note of the stand of the Additional Chief Secretary of the Department of Basic Education pursuant to its previous orders, which is reproduced hereinafter:-

"10. An affidavit of compliance has since then been filed by Ms. Renuka Kumar, Additional Chief Secretary, Department of Basic Education, Government of U.P., responding to queries raised in the order dated 22.07.2019 as under :-

"(a) District-wise break-up of the last candidates in various categories in the District who were given appointment by October, 2016?

As per the information furnished by the District authorities related to the said recruitment since the selections were made to the vacancies allotted to the district class/category wise, the information was provided on a prescribed format by each district showing the breakup of the last selected candidates in various categories in the district who were given appointments as a Trainee Teacher. As reported by the district authorities 64257 appointments were made before October, 2016 and 1536 selections/ appointments were under process to be completed which is mentioned in the affidavit filed on 01 Oct, 2016. In addition to said selections, in compliance of the Hon'ble Supreme Court's order dated 07.12.2015, 862 candidates were selected on ad-hoc basis against the list of 1100 candidates before 01 Oct, 2016. District wise breakup of last candidate in various category in 75 district, as furnished by the district authorities is annexed here with as Annexure No.A-1.

(b) whether any fresh appointments were effected after October, 2016?

As reported by the district level authorities, no fresh selection/appointment was made after October 2016 except the candidates against 1536 posts who were under process and reported in the affidavit dated 01-10-2016.

(c) Whether any person other than the one who satisfied the requirement laid down by this Court in its order dated 27.7.2015 as modified by further orders of this Court was given appointment? If so, the name, age, and marks obtained by every such candidates as against the cut off.

As reported by the district level authorities related to the said recruitment no person other than the ones who satisfied the requirement laid down by this Court in its order dated 27.7.2015 as modified by further orders of this Court was given appointment. It is clarified here that in the Hon'ble Supreme Court's order dated 27.07.2015 the criterion/parameters fixed by the Hon'ble Supreme Court in earlier orders are mentioned. The 862 ad-hoc selections against the 1100 candidates list were made in compliance of Hon'ble Supreme Court's order dated 07.12.2015. It is pertinent to mention here that some of the candidate selected among 862 candidates on ad-hoc basis do not fulfill the criterion/parameters fixed by Hon'ble Supreme court in its order dated 27.07.2015 and earlier orders. It is to be submitted that the details of these candidates were given in the affidavit of 1.10.2016 at paras 9-14 therefore which are not being repeated for the sake of brevity. In any case these deviations cannot be presented as precedent nor any claim was ever made to this effect. However, for ready reference the details of these 862 candidates are annexed hereto as Annexure A-2."

40. In the final judgment in contempt matter, the Supreme Court elaborately noticed the facts of the case and returned a categorical finding that there has been no violation of any of the orders passed by the Supreme Court, as was alleged in the contempt petition or otherwise. Para 11, 12 and 13 of the contempt judgment of the Supreme Court dated 13.12.2019 is reproduced hereinafter:-

"11. Following facts, therefore, emerge from the record:-

(a) Large number of vacancies were lying unfilled while the Civil Appeals were pending in this Court. Taking into account the interest of the student community those appointments were required to be made. A principle was, therefore adopted by order dated 17.12.2014 that those who had obtained more than 70% marks in TET Examination from the general category and those who had obtained more than 65% marks from the reserved categories be given appointments. The idea was clear that such candidates would normally stand selected in the ultimate process of selection. It was, however, made clear that such appointments would not entitle the selected candidates to raise any claim in equity.

(b) In the selection process undertaken thereafter, initially 29,174 candidates were selected and a direction was issued on 25.02.2015 to fill up those posts.

(c) The next order dated 02.11.2015 recorded that as against 72,825 posts which were advertised, 43,077 candidates were appointed, who after completion of training were actually working while 15,058 candidates were undergoing training, leaving about 14,640 posts still vacant.

(d) The exercise of selecting those who had secured minimum marks in terms of criteria devised by order dated 17.12.2014 also resulted in finding 12,091 persons eligible subject to verification of antecedents, as was recorded in the order dated 07.12.2015

(e) The list of these 12091 candidates was published and it is a matter of record that the names of the contempt petitioners were part of this list.

(f) According to para 21 of the Affidavit dated 01.10.2016 (which has been referred to in the order dated 22.07.2019) out of these 12091 candidates, only 391 candidates could be appointed as the others either did not take part in the selection process or had not opted for certain Districts or could not be selected going by the cut-off for the concerned District. This development had happened way back in October 2016 and the affidavit was on record since then.

(g) The State thereafter published another advertisement on 06.02.2016 so that if any candidate was left out, his candidature could be considered. Steps were thereafter taken and another advertisement was published on 08.02.2016. Para 25 of the Affidavit dated 01.10.2016 as quoted in the order dated 22.07.2019, dealt with this issue in clear terms and was thus part of the record.

(h) Aforesaid para 25 of the Affidavit thus made it clear that as on the date when the affidavit was filed, 64,257 vacancies were filled up and 1,536 appointment letters were being issued in addition. It was also stated that 862 candidates were given ad-hoc appointments in terms of the order dated 07.12.2015 and were not included in the number of 64,257. These three figures aggregate to number 66,655.

(i) Thus, the reasons for not appointing all the persons who were part of list of 12,091 candidates were available on record from October 2016 onwards.

(j) At no stage any grievance was made till the matter was disposed of in July 2017 which gave the status of permanency to those who were appointed under various interim orders passed by this Court.

(k) The grievance was made for the first time almost a year after when these contempt petitions were filed.

(l) The order dated 22.07.2019 had, therefore, observed that the Court could not disregard the fact that challenge had been raised more than a year after the final Judgment. Even then, the State Government was called upon to indicate on affidavit certain issues. The reason was obvious that if there was large scale infraction of interim orders passed by this Court which merged in the final Judgment, the matter could still have been considered.

(m) However, the response filed by the State Government now indicates with clarity that no fresh appointments were effected after 2016 and no person other than those who satisfied the requirements laid down by this Court in its Order dated 27.07.2015 as modified by further orders, was given any appointment. The State Government has also placed on record the District wise break-up of all candidates appointed in various categories in all 75 Districts of the State.

(n) Even after the filing of the response by the State, as indicated in para 10 hereinabove, nothing substantial cold be pointed out by any of the candidates or contempt petitioners.

12. In the circumstances, we do not see anything wrong in the process undertaken by the State Government in pursuance of various interim orders passed by this Court and also in pursuance of the Judgment and final order dated 25.07.2017. The fact that out of 12,091 candidates only few could be selected and the reasons for non-selection of rest of the candidates, were part of the record since October 2016. In any case, response filed by the State is also clear. In the totality of the circumstances, in our view, there has not been any violation of any of the orders passed by this Court as alleged in the contempt petitions or otherwise.

13. We, therefore, see no reason to interfere in these contempt petitions which are directed to be closed."

41. The records reveal that review petition Nos.851-879 of 2020, were then filed in respect of claim of appointment of 12091 persons before the Supreme Court. These review petitions were also rejected by the Supreme Court on 8.5.2020. The order of the Supreme Court dated 8.5.2020 is reproduced hereinafter:-

"The contempt petitions preferred by various parties were disposed of by Order dated 13.12.2019. In para 11 of the Order certain facts which emerged from the record were set out, which included inter alia:-

"Thus, the reasons for not appointing all the persons who were part of list of 12,091 candidates were available on record from October 2016 onwards.

At no stage any grievance was made till the matter was disposed of in July 2017 which gave the status of permanency to those who were appointed under various interim orders passed by this Court."

In para 2(e)of the review petition it is now alleged that some of the candidates had filed contempt petition No.190 of 2016 on 11.03.2016 along with other contempt petitions seeking compliance of the order dated 07.12.2015. However, the record does not indicate that any grievance was made when the matter was finally heard and disposed of in July 2017.

In the circumstances, we see no merit in the review petitions. These review petitions are accordingly dismissed."

42. It further transpires that second round of litigation was then instituted before the High Court at the instance of candidates, who claimed entitlement for appointment based upon interim orders passed by the Supreme Court in the appeal of Shiv Kumar Pathak (supra). The writ petitions in that regard with leading Writ-A No.9163 of 2021 was dismissed on 19.8.2021 following the previous order of the Court in Akhilesh Kumar Pandey (supra).

43. We may also note at this stage that similar claim of appointment was put-forth before the Lucknow Bench of this Court, relying upon the interim orders passed by the Supreme Court in Shiv Kumar Pathak (supra). This grievance was rejected by the High Court on 7.8.2019. Special Appeal No.397 of 2019 was then filed claiming entitlement for appointment on the post of Assistant Teacher. This special appeal also came to be dismissed by the Lucknow Bench of this Court on 16.9.2019.

44. In the series of litigations instituted by the 12091 shortlisted candidates before High Court and the Hon'ble Supreme Court the petition under Article 32 of the Constitution of India came to be filed in the year 2023 and has been disposed of by the Supreme Court on 27.9.2023, by granting liberty to these persons to approach the High Court. It is pursuant to this liberty granted by the Supreme Court that the writ petitions came to be filed before this Court in a bunch of writ petitions with leading Writ-A No.17129 of 2023 (Vinay Kumar Pandey and 9 others Vs. State of U.P. and 2 others), which has been disposed of on 12.1.2024. Learned Single Judge noticed the scope of the proceedings in para 12 and 13 of the judgment, which are reproduced hereinafter:-

"12. In aforesaid circumstances, in view of the limited window opened by Supreme Court, as referred in order dated 27.09.2023 passed in Writ Petition (Civil) Diary No. 19925 of 2023, the controversy before this Court is now narrowed down only to the aspect that since proceedings were initiated for consideration of candidature of candidates who are part of list of 12091 way back in the year 2016 and it is the stand of State that only few (391) were found eligible on counselling of such candidates (about 4000), who have appeared in counselling, this stand has to be tested on basis of specific averments made on oath by petitioners, who are part of aforesaid list that counselling in number of districts were never took place and petitioners have not participated in any counselling.

13. There are certain documents annexed alongwith rejoinder affidavit that concerned State-Respondents at district level have communicated that no counselling took place in pursuance of advertisements issued in the year 2016 and that except about 4000 candidates rest of candidates out of aforesaid list of 12091 have not participated, therefore, in the interest of justice I am of the considered opinion that all these writ petitions be disposed of with certain observations/ directions."

45. In para 15 of the judgment, learned Single Judge has rejected the claim of persons other than those forming part of list of 12091 candidates. Reason assigned for rejection of their claim is contained in para 15 of the judgment in Vinay Kumar Pandey (supra), which is reproduced hereinafter:-

"15. So far as writ petition filed by petitioners who are admittedly not part of list of 12091 candidates, no relief can be granted even though, as contended, they are on better footing than candidates of list of 12091."

46. The writ petitions at the instance of 12091 candidates have ultimately been allowed by the learned Single Judge for the reasons contained in para 16 to 22 of the judgment in Vinay Kumar Pandey (supra), which are extracted hereinafter:-

"16. As referred above, out of 12091 candidates, only about 4000 candidates have appeared during counselling and out of them only 391 were appointed, therefore, number of vacancies towards that list are still available.

17. Supreme Court has opened a window for consideration of candidates belonging to said list of 12091 candidates, though on the premises that they have granted appointment but not allowed to join, which is not substantiated, still as referred above, now the case is that number of candidates of list of 12091 candidates were not participated in counselling either no counselling was conducted or they were not adequately informed and said fact was not brought in record except about process of counselling. It would be strange event if despite knowledge of counselling, number of candidates of said list have not participated in counselling but remained in litigation thereafter.

18. In view of above position and in the interest of justice and to conclude the controversy, it is directed that concerned respondents shall issue a fresh advertisement to call the candidates belonging to said category of 12091, who have not appeared earlier for counselling, fixing a date in the week commencing 05th February, 2024 and for that advertisement shall be published in three leading newspapers having circulation at least of one paper in each district of State of Uttar Pradesh on 22nd and 25th January, 2024.

19. The candidates who have not participated in counselling and are part of list of 12091, will have liberty to appear in pursuance of advertisement to be issued without any fail and counselling shall be concluded in accordance with law and result thereof shall be pronounced during last week of February, 2024.

20. Each candidate has to submit a notarized affidavit that they have not appeared in earlier counselling and has to deposit Rs. 2000/- for counselling additionally before concerned authority.

21. With aforesaid observations and directions, all the writ petitions are disposed of.

22. Before parting with this judgment, it is observed that this Court has proceeded to take note of solemn affidavits of petitioners with regard to their statement about counselling and that they are aspirants to become a 'Teacher', a highly regarded position, so much as that a Teacher has been put on a place above than God, as many years ago Saint Kabir has said:

गुरू गोविन्द दोऊ खड़े, काके लागूं पांय।

बलिहारी गुरू अपने गोविन्द दियो बताय।। "

47. On behalf of appellants, it is strenuously urged by Sri Kushmondeya Shahi, learned counsel for the appellants as well as Sri Ramanand Pandey appearing for the State that learned Single Judge has not appreciated the controversy in correct perspective, which has occasioned failure of justice in the matter. Sri Shahi submits that the writ petitioners essentially claimed entitlement to be appointed as Assistant Teacher on account of interim orders passed by the Supreme Court during pendency of the civil appeal and for its enforcement. It is also pointed out that the contempt petitions were actually filed where the specific grievance raised with regard to non-compliance of the interim directions issued by the Supreme Court in civil appeal was duly examined by the Supreme Court and rejected after returning a specific finding that in the totality of circumstances there has not been any violation of any orders passed by the Supreme Court, as alleged in the contempt petitions or otherwise. Submission is that after such categorical finding by the Supreme Court itself, it was not open for the Writ Court to virtually sit in appeal against the order of the Supreme Court, on account of which petitioners are entitled to be appointed. It is further submitted that even review petitions were also rejected by the Supreme Court. Series of writ petitions and special appeals filed thereafter before this Court were also rejected. It is, therefore, submitted that merely because in the petition filed before the Supreme Court under Article 32 of the Constitution of India the petitioners were permitted to approach the High Court, it would not mean that the previous adjudication by the Supreme Court could be overlooked by the High Court or a direction contrary to the orders passed by the Supreme Court could be issued. It is further argued that the recruitment exercise has otherwise been concluded long back and it would not be open at this late stage to consider appointment of 12091 shortlisted candidates, particularly as all advertised vacancies have been filled and the surviving vacancies pertain to different reserve categories. Learned counsel further submits that 66655 teachers have already been appointed and since the remaining vacancies are for different reserved categories there are no vacancies available against the advertised posts on which remaining 12091 shortlisted candidates could be appointed. It is also argued that the vacancies, which have not been advertised otherwise cannot be directed to be filled with appointment of 12091 candidates. The appellants also argue that judicial propriety demands that once the claim of these 12091 shortlisted candidates are rejected by the Supreme Court in contempt proceedings, it would not be open for this Court to resurrect such claim or issue any direction in derogation of the orders passed by the Supreme Court. Argument is also raised regarding maintainability of the writ petition on the ground that a writ would not lie before the High Court for enforcement of the interim orders passed by the Supreme Court, particularly when the Supreme Court itself has rejected their claim after holding that there has not been any violation of the interim orders of the Supreme Court.

48. On facts also, it is submitted that there is no disobedience of the interim orders passed by the Supreme Court, inasmuch as the State/Board had dutifully complied with the orders of the Supreme Court and all those, who appeared in the counseling against vacant positions and had scored marks above the cut off in their respective category, were offered appointment. Submission is that the State/Board had notified the cut off in respect of different categories for each district and none of the writ petitioners has come forward with any specific case of non-consideration, on facts. Argument is that cadre being district-wise and merit list having been drawn for separate categories, distinctly, any omnibus direction to appoint 12091 shortlisted candidates would be impermissible. Subsequent developments have also been highlighted in order to object to the claim of writ petitioners.

49. On behalf of respondent-petitioners, Sri Ashok Khare, Sri H.N. Singh, Sri R.K. Ojha, Sri Gajendra Pratap, Sri Rakesh Pandey, Sri Anil Tiwari, learned Senior Advocates alongwith other learned Advocates have strenuously urged that claim of 12091 candidates was duly acknowledged by the State pursuant to interim orders passed by the Supreme Court and only appointment orders were to be issued to them but the same was arbitrarily withheld. It is submitted that the candidates forming part of 12091 candidates have in fact been found entitled to be appointed and denial of appointment letters to them is wholly arbitrary. Much emphasis has been laid upon the numbers specified in para 18 of the final judgment of the Supreme Court, wherein it is recorded that 54464 posts have already been filled up, whereafter the number of teachers protected under orders of the Supreme Court stands quantified at 66655 in para 19 of the final judgment. It is submitted that 54464 is added to 12091, then the magical figure of 66655 worked out. It is submitted that Supreme Court has already protected appointment of 66655 teachers, which, in fact, includes 12091 shortlisted candidates, and therefore, denial of appointment letters to these 12091 candidates is wholly arbitrary. The respondent-petitioners, therefore, submits that judgment and order passed by the learned Single Judge, challenged in this bunch of appeals, merits no interference. So far as the orders passed by the Supreme Court in contempt proceedings are concerned, it is submitted that scope of contempt is limited to deliberate and intentional acts of disobedience and the mere fact that contempt proceedings were dropped, it would not mean that the plea of discrimination set up by 12091 shortlisted candidates would not be considered, particularly when the Supreme Court in the petition filed under Article 32 of the Constitution of India has granted liberty to approach the High Court. Argument is that the special appeals filed by the board and the State lacks merit and deserves dismissal.

50. Sri G.K. Singh, learned Senior Counsel assisted by Sri Seemant Singh and other learned counsels have espoused the cause of candidates not included in the shortlisted category of 12091 and whose claim has been rejected by the learned Single Judge in para 15 of the judgment. So far as these candidates are concerned, it is argued that they have scored higher marks than most of the candidates forming part of 12091 shortlisted candidates, and therefore, their grievance also merits consideration or else it would result in hostile discrimination to such candidates. Learned counsels argued that refusal by the learned Single Judge to consider case of such candidates with higher marks, then 12091 candidates, who have not been considered even by the State, requires consideration and appropriate direction be issued in that regard.

51. Claim of candidates other than 12091 shortlisted candidates is opposed by 12091 candidates, who assert that candidates whose claim has not been accepted by the State or by the Supreme Court do not have any right. Claim of these persons are also opposed by the State and the Board on similar grounds.

52. It is in the context of above-noted facts as well as argument advanced by rival parties in the present appeals that this Court is required to examine as to whether the direction issued by the learned Single Judge to hold counseling for 12091 shortlisted candidates is just, legal and valid or not? As a sequel this Court is also required to examine as to whether rejection of claim of candidates over and above 12091 candidates is valid or requires interference.

53. Controversy in this bunch of special appeals relates to appointment as trainee teacher in the primary institutions run by the board. Conditions of service of these teachers including their recruitment are regulated by the Rules of 1981. This position had to be altered by amending the rules of 1981 consequent upon the notification issued by NCTE under the Act of 2009 pursuant to the introduction of Article 21-A in the Constitution of India which conferred right of compulsory education to children between 6 to 14 years. As is already noticed earlier the NCTE was designated as academic authority under the RTE Act of 2009 to lay down minimum qualification for appointment as teachers in institutions meant for age group of 6 to 14 years. NCTE, consequently, issued a notification on 23.8.2010 making it mandatory for a teacher to be appointed in such institutions to pass Teacher Eligibility Test. On 11.2.2011 qualifying marks was specified for TET. The notification made it permissible to accord concession in respect of teachers of reserved category and also made it possible to award weight-age to those who have passed TET examination. By a subsequent notification of 29.7.2011 NCTE recognized six months training programme for B.Ed. degree holders to be appointed as teachers in basic schools.

54. Rules of 1981 came to be amended on 9.11.2011 to bring it in conformity with NCTE notification of 23.8.2010 and 11.2.2011. It is thereafter that TET examination was held in the State of Uttar Pradesh on 13.11.2011 and its result was declared on 25.11.2011. It is thereafter that the process of recruitment was initiated for appointment to the post of trainee teacher vide advertisement dated 30.11.2011.

55. Controversy erupted in respect of the fairness of the TET examination conducted in the State on 13.11.2011. A High Powered Committee was constituted to examine the allegation and on the basis of its recommendation made by this Committee the recruitment rules were amended vide 15th amendment. As a consequence, the merit drawn exclusively on the basis of TET marks as per 14th amendment in the Rules of 1981 now came to be drawn differently, on the basis of quality point marks specified in the rules as per 15th amendment introduced on 31.8.2012. In order to hold recruitment as per the amended rules the State cancelled the previous advertisement dated 30.11.2011 and issued fresh advertisement on 7.12.2012. It is at this stage that writ petitions were filed challenging the cancellation of previous advertisement dated 30.11.2011 as also the subsequent advertisement issued for recruitment in accordance with 15th amendment to the rules of 1981. These writ petitions were dismissed on 16.1.2013 on the ground that concept of trainee teacher is not countenanced in the recruitment rules of 1981.

56. Special appeals filed against the judgment dated 16.1.2013 were allowed on 20.11.2013 and a direction was issued to the State Government to complete the selection process initiated pursuant to advertisement dated 30.11.2011. The Division Bench was of the view that the NCTE notification was contravened by the 15th amendment to the Rules of 1981. This Division Bench judgment was challenged before the Supreme Court in a batch of civil appeals titled as Shiv Kumar Pathak (supra).

57. The special appeal filed before the Supreme Court in Shiv Kumar Pathak (supra) has been allowed by the Supreme Court on 25.7.2017. The Supreme Court held that NCTE notification of 11.2.2011 did not make it obligatory to award weight-age to TET marks and, therefore, 15th amendment made in the recruitment rules of 1981 required no interference.

58. Notwithstanding the approval granted by the Supreme Court to the State action in amending the Rules of 1981 vide 15th Amendment the Court protected the appointments of trainee teachers made under its interim orders, issued from time to time, as extracted above. It is, therefore, on account of interim directions issued by the Hon'ble Supreme Court in Shiv Kumar Pathak (supra) for appointments to be made under orders of the Division Bench that the right of appointment arose to candidates who had applied pursuant to the advertisement dated 30.11.2011.

59. Claim for appointment by the writ petitioners, therefore, is founded on the interim orders passed by the Supreme Court in Shiv Kumar Pathak (supra). According to petitioners they have perfected right to appointment under the interim orders passed in Shiv Kumar Pathak (supra) and its denial by the State/Board is the alleged cause raised in writ. Learned Single Judge has accepted the claim of 12091 shortlisted candidates for appointment as trainee teacher which is under challenge at the instance of the State/Board. Grievance of other writ petitioners who were not included in 12091 shortlisted candidates has been rejected by learned Single Judge and to such extent these candidates are up in appeal against the finding contained in para 15 of the judgment of the learned Single Judge.

60. In order to effectively examine the grievance raised by the writ petitioners it would be necessary to appreciate the manner in which the recruitment of trainee teachers itself has been made under the interim orders of the Supreme Court in Shiv Kumar Pathak (supra).

61. 72825 posts of assistant teachers were advertised for appointment as trainee teacher throughout the State. Appointing authority is defined in Rule 2(b) of the Act of 1972 to mean the District Basic Education Officer. Rule 14 of the Rules of 1981 provides that appointing authority shall determine the number of vacancies and also determine the vacancies reserved for various category of candidates. Since each District Basic Education Officer had to determine vacancies in his respective district and also reserve post for distinct categories of reservation, therefore, merit list was prepared distinctly in respect of each district, categorywise. Writ petitioners in their rejoinder affidavit have placed on record the advertisements issued by district basic education officers on 6.2.2016/8.2.2016 calling for the shortlisted candidates to appear for counseling against vacancies specified in distinct categories. Cut-off marks in each category as also the vacancies available in each category were clearly specified. One such advertisement issued in respect of district Sant Kabir Nagar is extracted hereinafter:-

"कार्यालय जिला बेसिक शिक्षा अधिकारी जनपद संत कबीर नगर विज्ञप्ति/सूचना उ०प्र० बेसिक शिक्षा परिषद के नियंत्रणाधीन परिषदीय प्राथमिक विद्यालयों में 72825 प्रशिक्षु शिक्षकों के चयन/नियुक्ति के सम्बन्ध में मा० सर्वोच्च न्यायालय में योजित विशेष अनुज्ञा याचिका संख्या-4347-4375/2014 उ०प्र० सरकार व अन्य बनाम शिव कुमार पाठक व अन्य में मा० सर्वोच्च न्यायालय द्वारा दिनांक 07.12.2015 को पारित आदेश के अनुपालन में परिषद कार्यालय को उपलब्ध कराये गये प्रत्यावेदनों के आधार पर तत्समय कट ऑफ मेरिट से ऊपर पाये गये 12091 अभ्यर्थियों हेतु दिनांक 10.12.2016 को काउन्सिलिंग का आयोजन किया जा रहा है। इस हेतु जनपद संतकबीरनगर में 72825 प्रशिक्षु शिक्षकों हेतु आवंटित कुल 800 (ऑफर) पदों में से अवशेष वर्गवार/श्रेणीवार/श्रेणीवार रिक्तियों एवं कट ऑफ मेरिट का विवरण निम्नवत है।

वर्ग/श्रेणी चयनित अभ्यर्थियों का कट-ऑफ मेरिट चयनित अभ्यर्थियों का कट-ऑफ जन्म तिथि रिक्तियों की संख्या महिला अनारक्षित कला 107 13.9.1981 0 महिला अनुसूचित जाति कला 90 10.7.1985 19 महिला अनुसूचित जनजाति कला 103 10.10.1982 3 महिला पिछड़ा वर्ग कला 102 16.7.1987 0 महिला अनारक्षित विज्ञान 106 16.12.1990 0 महिला अनुसूचित जाति विज्ञान 97 05.1.1980 41 महिला अनुसूचित जनजाति विज्ञान 0 ......

महिला पिछड़ा वर्ग विज्ञान 96 25.3.1979 0 महिला दृष्टिबाधित 0 .....

महिला श्रवणह्रास 0 .....

महिला चलनह्रास 92 05.7.1987 0 महिला स्वतंत्रता सेनानी आश्रित 0 .....

महिला भूतपूर्व सैनिक 0 .....

पुरुष अनारक्षित कला 118 08.12.1977 0 पुरुष अनुसूचित जाति कला 103 07.5.1985 0 पुरुष अनुसूचित जनजाति कला 0 .....

पुरुष पिछड़ा वर्ग कला 113 10.8.1986 0 पुरुष अनारक्षित विज्ञान 115 12.10.1976 0 पुरुष अनुसूचित जाति विज्ञान 97 02.3.1987 0 पुरुष अनुसूचित जनजाति विज्ञान 0 .....

पुरुष पिछड़ा वर्ग विज्ञान 112 12.8.1988 0 पुरुष दृष्टिबाधित 98 05.7.1986 0 पुरुष श्रवणह्रास 99 10.5.1985 0 पुरुष चलनह्रास 97 01.7.1979 0 पुरुष स्वतंत्रता सेनानी आश्रित 102 01.7.1979 0 पुरुष भूतपूर्व सैनिक 93 30.9.1962 0 महिला अनारक्षित वर्ग शिक्षा मित्र 0 .....

महिला पिछड़ा वर्ग शिक्षा मित्र 0 .....

महिला अनुसूचित जाति शिक्षा मित्र 0 .....

महिला अनुसूचित जन जाति शिक्षा मित्र 0 .....

पुरुष अनारक्षित शिक्षा मित्र 110 08.7.1980 0 पुरुष पिछड़ा वर्ग शिक्षा मित्र 101 25.7.1975 0 पुरुष अनुसूचित जाति शिक्षा मित्र 0 .....

पुरुष अनुसूचित जन जाति शिक्षा मित्र 0 .....

योग-

अतएवं ऐसे अभ्यर्थी जो परिषद द्वारा वेबसाइट Upbeb.org पर प्रकाशित सूची में सम्मिलित हों वे निर्धारित तिथि को अपने मूल शैक्षिक अभिलेखों/अन्य प्रमाण पत्रों एवं चार पासपोर्ट साईज फोटो के साथ काउन्सिलिंग स्थल BSAकार्यालय, संतकबीरनगर पर उपस्थित होना सुनिश्चित करें। मात्र काउन्सिलिंग में उपस्थित होने के आधार पर अभ्यर्थी द्वारा प्रशिक्षु शिक्षक पद पर नियुक्ति का दावा नहीं किया जा सकता है।

नोटः- ऐसे अभ्यर्थी काउन्सिलिंग में प्रतिभाग करने हेतु अर्ह नहीं होंगे जो काउन्सलिंग में उपस्थित हुए हो किन्तु अभ्यर्थन निरस्त हो गया हो, पूर्व में चयनित होने के उपरान्त नियुक्ति पत्र स्वीकार नहीं किया गया हो, पूर्व में चयनित होकर किसी जनपद में प्रशिक्षु शिक्षक के रिक्ति के सापेक्ष नियुक्ति पत्र प्राप्त कर लिया हो तथा कार्यभार ग्रहण कर लिया हो।

( महेन्द्र प्रताप सिंह) जिला बेसिक शिक्षा अधिकारी, जनपद-संतकबीरनगर पत्रांकः बेसिक-1/19715/2015-16 दिनांक 08.02.2016"

62. Advertisements in respect of many of other districts are also annexed alongwith the rejoinder affidavit. From the aforesaid advertisement it does appear that actual recruitment in several rounds of counseling was held earlier in each of the 75 districts of the State and the cut-off marks for various categories was separate and distinct. Noticeably, there is no fix cut-off for all categories and the cut-off varied from district to district and category to category.

63. The Supreme Court had directed the State to fill up 72825 advertised posts of assistant from candidates who had applied pursuant to the advertisement and secured 70% or above marks in the TET for general category and 65% for other categories.

64. Pursuant to the first interim order of the Supreme Court dated 25.3.2014, the State Government vide its order dated 27.6.2014 and 1.7.2014 proceeded to make selection and appointment against 72825 posts of trainee teachers. First counseling was held between 29.8.2014 to 31.8.2014; second counseling from 22.9.2014 to 30.9.2014; third counseling from 5.11.2014 to 13.11.2014 and fourth counseling from 9.1.2015 to 14.1.2015. After these four rounds of counseling the Supreme Court was informed that 83983 appointment letters were issued but only 43651 candidates had joined and the process of filling up the remaining vacancies was on.

65. On 25.2.2015 the Supreme Court took note of aforesaid situation and directed the State Government to issue public notice within four weeks requiring the selected candidates in respect of remaining 29174 vacancies to join and that if such candidates failed to join within the stipulated period provided in the public notice their right for appointment was to be forfeited.

66. On 2.11.2015 the Supreme Court was informed that in view of its earlier interim orders, 40377 candidates were appointed, who after completion of training till September, 2015, were working. 15058 candidates were undergoing training. 8500 of these candidates undergoing training were to appear on 16-17 November, 2015 and the remaining after completion of their training.

67. It is on 2.11.2015 that grievance was raised by number of candidates that though they secured 70% marks in the TET examination in general category and lower percentage in other category yet they are not being appointed. The Supreme Court permitted such persons to make representation so that their grievances could be examined. On 7.12.2015, the Supreme Court was informed that more than 75000 representations were received in terms of liberty granted by the Court and after scanning the same the State Government has found 12091 candidates eligible for being appointed subject to verification of antecedents. A direction was thus issued for said persons to be appointed subject to their verification within six weeks.

68. It is pursuant to the order of the Supreme Court dated 7.12.2015 that the State issued a government order on 3.2.2016 for fresh counseling to be held on 10.2.2016 for 12091 shortlisted candidates. Advertisements were also published on 6.2.2016 and again on 8.2.2016 giving an opportunity to any of those candidates from the list of 12091 candidates to appear for the counseling. The advertisements specified vacancies available in each category as also the cut-off marks for each of it. It is undisputed that about 4000 persons appeared in the counseling on 10th February, 2016 but only 391 candidates were actually appointed.

69. Since candidates were permitted to apply in all districts as such most of the candidates apparently applied for appointment in multiple districts. The vacancy position as well as cut-off in each district was distinct. A candidate from 12091 shortlisted category had to appear in the particular district where vacancy existed in his/her category and the marks were also above the cut-off in order to secure appointment.

70. We may refer to the order of the Supreme Court, passed in contempt proceedings on 22.7.2019, which acknowledges that in the aforesaid process only 391 candidates came to be appointed as the others did not take part in the selection process or had not opted for certain districts or could not be selected going by the cut-off for the concerned districts.

71. The Supreme Court was informed that 64257 vacancies have been filled up and in addition to it appointment letters were being issued in respect of 1536 posts. The remaining vacancies belong to special horizontal reservation categories of handicapped persons, dependents of freedom fighters, ex-servicemen and also the Scheduled Castes/Scheduled Tribes candidates and these remaining vacancies could not be filled up by candidates of any other categories.

72. The claim of writ petitioners is that 12091 candidates were entitled to be appointed, subject only to verification of antecedents. These petitioners also state that the final judgment dated 25.7.2017 of the Supreme Court has protected appointment of 66655 teachers which includes 12091 shortlisted candidates. As per them the break up of 66655 teachers consists of 54464 posts which were already filled up (as noticed in para 18 of the final judgment dated 25.7.2017 in Shiv Kumar Pathak (supra)) and 12091 shortlisted candidates to which they belong.

73. The list of 12091 candidates has been produced by the counsel for the petitioners. Extract of this list of 12091 candidates produced before the Supreme Court has been filed in Writ Petition No.17994 of 2023 (Ram Prasad Vishwakarma and ors. vs. State of U.P. & Ors.). The list is titled as:-

"मा० सर्वोच्च न्यायालय द्वारा विशेष अनुज्ञा याचिका संख्या- 4347-4375/2014 में पारित आदेश दिनांक07.12.2015 के अनुपालन में प्रत्यावेदन देने वाले उन 12091 अभ्यर्थियो की सूची (ALPHABETICAL ORDER) जिनके टी.ई.टी. अंक उनके आवेदित जनपद/जनपदों में तत्समय कटआफ मेरिट से ऊपर थे।"

74. Names of 12091 candidates, therefore, are mentioned in alphabetical order who have given representation pursuant to order of Supreme Court in Shiv Kumar Pathak (supra) and whose TET marks are above the cut-off in the respective district.

75. This list of 12091 shortlisted candidates has been carefully perused by us. It is admitted to learned counsels for the parties that list of these 12091 candidates do not specify the district or the category in which their marks are above the cut-off. Individual marks of persons included in the list of 12091 candidates varies to a great extent. Some of those included in the list have secured as high marks as 133 marks in TET while others have secured much lesser marks like 90. Though the title of the list categorically records that the candidates included in the list of 12091 have obtained the TET marks above the cut-off in their respective district but neither their category is specified nor the district is mentioned.

76. Since candidates had applied in multiple districts it would have to be seen as to whether any vacancy existed in the relevant category of the district where the candidate appeared for counseling pursuant to the counseling held on 10.2.2016.

77. Unless it is shown that in the counseling held on 10.2.2016 there existed vacancy in the category to which the shortlisted candidate belonged and was refused/denied appointment, despite having scored marks above the cut-off, it would not be open to raise a valid grievance.

78. According to the Board/State the direction of the Supreme Court was complied with and the State not only resolved to act in terms of the directions of the Supreme Court but a fair procedure was followed by issuing advertisements for counseling to be held on 10.2.2016 for offering appointment to the 12091 shortlisted candidate against available vacancy. On the basis of such counselling 391 candidates came to be appointed in different districts of the State.

79. As per the State/Board others from the list of 12091 candidates could not be appointed as they did not take part in selection process or had not opted for certain districts or could not be selected going by the cut-off for the concerned district.

80. In the writ petitions filed before this Court the petitioners have merely stated that they are entitled to be appointed as their name figures in the list of 12091 candidates who have scored marks above the cut-off.

81. We have carefully perused the averments made in the writ petitions filed before the learned Single Judge and in none of the writ petitions there is any specific assertion with reference to a particular candidate that he/she had appeared for the counselling in the district where vacancy existed in his/her category and the appointment was denied despite scoring marks above the cut-off.

82. We may refer to the pleadings contained in para 26 to 33 of the writ petition of Ram Prasad Vishwakarma (supra) and thereafter in para 40 to 50 which contains absolutely general allegations regarding petitioners entitlement to appointment.

83. Unless the petitioners specifically plead and prove that though they availed of the opportunity granted by the Supreme Court vide order dated 7.12.2015 yet appointment was denied despite existence of vacancy in the concerned category and marks above the cut-off, it would not be possible to accept petitioners' claim for appointment merely because their names find mentions in the list of 12091 candidates.

84. The list of 12091 candidates depicts that the candidates included therein had secured marks above the cut-off of TET marks in their respective districts. It would, however, have to be seen as to whether in the respective category to which they belong in the district concerned any vacancy existed or the concerned candidate had appeared for counselling or not. In the absence of any specific pleading in the writ petition there would hardly be an occasion for the State/Board to controvert petitioners claim or for the writ Court to determine petitioners entitlement for appointment.

85. The advertisement issued by each district basic education officer specifies the category in which posts were vacant. As an illustration we have taken note of district Sant Kabir Nagar, wherein 76 vacancies were still available when the counselling was notified for 10th February. 19 of these 76 vacancies were in women scheduled castes (arts) category, 3 in women scheduled tribes (arts) category, 41 in women scheduled castes (science) category, 4 in scheduled castes (science) category, 5 male women scheduled tribes (arts) category, 4 in male women scheduled tribes (science) category. Similarly in other districts also the vacancies existed in different categories most of which were for vertical or horizontal reservation. We have also perused the advertisements for districts Sitapur, Ghazipur, Siddharth Nagar, Lakhimpur Kheri etc. For Sitapur, 127 posts available were in women scheduled tribes (arts) category, 4 in OBC (arts) category, 104 vacancies in women scheduled castes (science) category, 30 in scheduled tribes (science) category etc.

86. Sri Shahi, learned counsel for the Board has emphatically argued that candidates had applied for different districts and unless they presented themselves for counselling in a district where their cut-off was above the list selected candidate and vacancy was available it was not possible to consider their case. Sri Shahi further submits that counseling was actually held throughout the State and 391 candidates were infact appointed and it cannot be said that no counseling was held on 10.2.2016. Argument is that petitioners claim is not supported by assertions made in the writ and that no relief can be granted on the strength of such vague and deficient pleading.

87. On behalf of the writ petitioners learned counsels have doubted holding of counseling on 10.2.2016 and general arguments have been advanced to the effect that once the cut-off marks in TET was above the last selected candidate petitioners were entitled to be appointed. We find it difficult to entertain such a grievance as the list of 12091 candidates neither refers to the district nor specifies the concerned category to which the candidate belongs and it is also not shown that any vacancies existed in the district concerned. Mere inclusion in the list of 12091 candidates would not be determinative unless it is shown that the concerned candidate appeared for counseling in the district where vacancy existed in his category and his cut-off marks were above the last selected candidate. Since the details in that regard are absolutely lacking we find it difficult to accept the claim of the writ petitioners that they are entitled to be appointed under the interim orders of the Supreme Court passed in Shiv Kumar Pathak (supra).

88. It would be useful at this juncture to refer to the law in respect of right of entitlement even to a selected candidate. The petitioners included in the shortlisted 12091 candidates cannot claim status higher than a selected candidate. In Shankarsan Dash (1991) 3 SCC 47 the Constitution Bench of Supreme Court has clearly held that even a selected candidate has no indefeasible right to be appointed and unless it is shown that the employer has acted arbitrarily a direction to appoint the candidate would not be warranted. Since the petitioners have not been able to show that the State/Board has acted arbitrarily in considering their claim for appointment as such no relief can be granted to them.

89. We may now refer the argument of the writ petitioners that in fact appointment of 12091 candidates was protected by the Supreme Court under the interim orders.

90. We have already noticed that multiple rounds of counseling was held at the respective DIET and till 14.1.2015 a total number of 83983 appointment letters were issued. Out of these appointment letters issued, 43651 candidates had reported for joining and an affidavit to this effect was filed before the Supreme Court. Out of those 43651 candidates, 43077 had actually joined their duties.

91. The State Government was repeatedly directed to fill up the remaining posts by the Supreme Court. On 27.7.2015 also the Court was informed that fresh counselling was held and a figure of 15058 candidates was placed before the Supreme Court. This has been specifically noticed in the order of the Supreme Court, dated 2.11.2015. On 2.11.2015, a further direction was issued to fill remaining 14640 posts.

92. During the course of hearing of this bunch of special appeals, learned counsel for the writ petitioners emphatically submitted that 66655 appointments were protected by the Supreme Court which included 12091 shortlisted candidates also. The break-up of appointments referred to in various orders of the Supreme Court were highlighted. In that view of the matter, we passed a specific order on 28.2.2024, directing the Board to clarify the break-up of 66655 appointments made pursuant to the interim order of the Supreme Court which were protected in the final judgment.

93. The Deputy Secretary of the Board has consequently filed his affidavit categorically denying claim of the writ petitioners that 12091 appointments form part of 66655 appointments that were protected by the Supreme Court. Paras 5 to 10 of the affidavit of the Deputy Secretary are reproduced hereinafter:-

"5. That the State Govt. was directed to fill up the remaining posts by order dated 27.07.2015 and in compliance of the same again the counseling was held and the figure of 15058 (Total 43077 + 15058 = 58135) was placed before the Hon'ble Supreme Court which has been noticed in the order dated 02.11.2015 (Page 112 of Paper Book) and again a direction was issued to fill up the remaining post of 14640.

6. That on 02.11.2015 the Hon'ble Supreme Court after hearing the learned counsels appearing for the candidates directed the candidates to submit their objection and the appellant was directed to verify their percentage of marks as well as the criteria by which the persons who have already been selected.

7. That in compliance of the said order the State Govt. has issued a Govt. Order on 03.02.2016 for holding the counseling on 10.02.2016 amongst the list of 12091 on the basis of the cut of marks of the last selected candidates in their respective category was published for holding the counseling. In the said counseling dated 10.02.2016 only 391 candidates have been selected who have secured higher marks than the last selected candidates in their respective category therefore after including the list of 391 candidates and some of the candidates who have submitted their joining pursuant to Ist to Vth round of counseling the figure was placed before the Hon'ble Supreme Court as 64257.

8. That it is relevant to point out here that the list of 12091 has not been included in the figure of 64257. The figure of 391 has been included in the figure of 64257 which is evident from the observation made by the Hon'ble Supreme Court in paragraph no. 11-f.

9. That it is wholly wrong to say that the list of 12091 candidates has been included in the figure of 64257 and in respect of which it is stated that till 02.11.2015 total 58135 candidates were appointed. If the said figure 12091 as stated by the petitioners has been counted with the 58135 candidates then the number goes to 70226 which is not correct and as such the claim of the petitioners is not sustainable in the eyes of law.

10. That total 64257+1536+862 (66655) appointments have been made which has been protected by the Hon'ble Supreme Court and w.e.f. 24.01.2019 the concept of trainee Teacher has been deleted by Twenty Third Amendment 2019."

94. On behalf of Board, it is also submitted that though 43077 candidates had actually joined their duties by January, 2015, but the number increased on account of subsequent directions issued by the Supreme Court to fill up the remaining vacancies, including the order passed on 27.7.2015, etc. It is pointed out that the numbers had increased by 15058 as was noticed in the order of the Supreme Court dated 2.11.2015 and, therefore, the figure of appointed candidates increased from 43077 to 58135. It is stated that only 391 candidates from the 12091 shortlisted candidates were appointed and were included in the figure of 64257 candidates. In all 64257 candidates were appointed and two distinct categories of 1536 and 862 candidates were added so as to make the grand tally of 66655 appointments.

95. Having examined the respective submissions, we find substance in the argument advanced by Sri Shahi that in fact the tally of 58135 appointed candidates over a period of time has increased to 64257 as counseling was subsequently allowed under the orders of the Supreme Court from time to time. It has also come on record that appointment orders were issued to about 83983 candidates but lesser candidates had joined. The statement made on behalf of the Board that more candidates joined on account of subsequent counseling held under orders of the Court cannot be disbelieved. Admittedly, only 391 out of 12091 shortlisted candidates were appointed and their appointment has been saved by the Supreme Court.

96. We find substance in the contention of the Board, inasmuch as, it is not disputed by the writ petitioners that only 391 out of 12091 candidates were actually appointed and, therefore, the break-up given by the Board in its affidavit clearly demolishes the case of the writ petitioners that their appointments were saved. Though it transpires that 12091 candidates were found to have scored marks above the cut-off in their respective districts, but admittedly no appointment letters were ever issued to them, nor these candidates have ever jointed or worked, except 391. If the figure of 15058 is to be added to 43077 appointed earlier then the figure swells to 58135 appointments. If 11700 (12091-391) is added to 58135 then the figure would work out to 69,835 which is much above 66655 appointments protected by the Supreme Court. We are, therefore, inclined to accept the argument of the Board/State that no right of appointment had crystallized in favour of left out candidates from the list of 12091 shortlisted candidates and consequently no direction could have been issued to hold counseling for appointment to be offered to the left out 12091 candidates. The petitioners claim, on this count, also merits rejection.

97. In addition to the deliberations held above, we find that the issue, as is being raised by the writ petitioners, otherwise is not open for examination, inasmuch as, the plea of 12091 shortlisted candidates that they were not fairly treated was entertained by the Supreme Court while entertaining the contempt petition. Order by the Supreme Court on 22.7.2019 has already been extracted above which would clearly indicate that the grievance raised at the instance of those 12091 shortlisted candidates was examined on merits by the Supreme Court. The Court clearly observed that though such a grievance was raised after a year of final judgment, yet the matter was entertained and an affidavit was called by the Supreme Court from the Additional Chief Secretary of the concerned department of the State.

98. The order passed by the Supreme Court on 22.7.2019 clearly indicates that though the factual inquiry in respect of 12091 shortlisted candidates was taken in a contempt petition, but the exercise of power was not limited to the contempt proceedings alone, inasmuch as, the limitation contained under Section 20 of the Contempt of Courts Act of one year was clearly overlooked. This categorically indicates that the Supreme Court actually examined the grievance of these 12091 shortlisted candidates on merits. A detailed inquiry in that regard was held and ultimately the proceedings were dropped on 13.12.2019. The Court categorically noticed that 64257 vacancies were filled up and 1536 appointment letters were being issued in addition to 862 candidates given ad-hoc appointments. Para 11(h) of the order, dated 13.12.2019, is reproduced again for better appreciation of the controversy:-

"(h) Aforesaid para 25 of the Affidavit thus made it clear that as on the date when the affidavit was filed, 64,257 vacancies were filled up and 1,536 appointment letters were being issued in addition. It was also stated that 862 candidates were given ad-hoc appointments in terms of the order dated 07.12.2015 and were not included in the number of 64,257. These three figures aggregate to number 66,655."

99. In paras 12 & 13 of the contempt order, the Supreme Court categorically rejected the case of 12091 candidates after observing that there has not been any violation of any of the orders of the Supreme Court as alleged in the contempt petitions or otherwise. Para 12 of the judgment containing such specific finding is again reproduced:-

"In the circumstances, we do not see anything wrong in the process undertaken by the State Government in pursuance of various interim orders passed by this Court and also in pursuance of the Judgment and final order dated 25.07.2017. The fact that out of 12,091 candidates only few could be selected and the reasons for non-selection of rest of the candidates, were part of the record since October 2016. In any case, response filed by the State is also clear. In the totality of the circumstances, in our view, there has not been any violation of any of the orders passed by this Court as alleged in the contempt petitions or otherwise."

100. Review petition filed in the matter is also rejected on 8.5.2021. It would, thus, be difficult for this Court to arrive at a contrary conclusion from what has been observed by the Supreme Court in the judgment of the Court dated 13.12.2019.

101. On account of the orders passed by the Supreme Court in Writ Petition (Civil) Diary No. 19925 of 2023, dated 27.9.2023, the writ petition has been entertained and the grievance of 12091 shortlisted candidates has been examined by us on merits and we have found their case to be bereft of any merits for the reasons recorded above. However, we may hasten to add that but for the liberty granted by the Supreme Court it would not have been open for this Court to even entertain the grievance of the shortlisted 12091 candidates as their claim was already rejected by the Supreme Court.

102. We find that though the learned Single Judge has relied upon the order passed by the Supreme Court on 27.9.2023 but the attention of the Court has not been invited to the previous adjudication made on the issue by the Supreme Court itself. Relevant facts relating to 12091 shortlisted candidates including the opportunity given to them for appearing in the counseling has apparently not been referred to. No definite finding has been returned by the learned Single Judge on the aspect relating to holding of counseling on 10.02.2016, pursuant to orders of the Supreme Court. The fact that pleadings in the writ petition, on this score, is wholly vague is overlooked. Adjudication by the Hon'ble Supreme Court on this aspect, while deciding the contempt matter, is completely omitted from consideration. Moreover, liberty granted by the Supreme Court to approach High Court, for seeking appropriate remedies, could not have been construed, per se, as a direction to the High Court to grant relief notwithstanding previous binding adjudication to the contrary. The fact that candidates had applied from multiple districts and that the list of 12091 was not specific to a particular district has also not been factored in. Whether any vacancy existed in the category to which the candidate belonged has also been overlooked. The fact that pleadings in writ were vague and general in nature ought to have been given more serious consideration. The only reason assigned by learned Single Judge to allow the claim of writ petitioners is contained in para 17, as per which, the left over 12091 shortlisted candidates had not participated in counseling either because no counseling was conducted or they were not informed and such fact was not brought on record except about the process of counseling. This finding apparently is vague as it is not clear as to which of the aforesaid exigency existed in the present case. The learned Single Judge has also expressed surprise that despite knowledge of counseling number of candidates from the said list have not participated and remained in litigation. This, too, cannot justify the direction to hold fresh counseling. Admittedly, only 391 from the shortlisted 12091 candidates were appointed and formed part of 66655 appointments protected in the final judgment of the Supreme Court. Leftover advertised posts pertained to various reserved categories. In the event claim of remaining shortlisted candidates from 12091 were to be considered then the appointments would far exceed 72825 advertised posts (66655+11700) which cannot be allowed.

103. With utmost respect, we, therefore, cannot approve of the reasoning assigned by the learned Single Judge to allow the writ petitions. In our considered opinion the facts of the present case do not merit any direction to hold counseling in favour of 12091 shortlisted candidates nor such a direction would be legally permissible in view of the previous adjudication on the issue by the Hon'ble Supreme Court as also by the Division Bench of this Court. Learned Single Judge has also not been referred to successive rounds of litigation instituted by the leftover candidates from the list of 12091 shortlisted candidates before this Court in a series of writ petitions and special appeal as well as before the Supreme Court and, therefore, merely because liberty was granted by the Supreme Court to such candidates to approach the High Court cannot be construed as a direction to accept the claim of writ petitioners. This is particularly so when the Hon'ble Supreme Court conclusively held that there has not been any violation of any orders of the Supreme Court as alleged in the contempt petitions or otherwise.

104. The recruitment in this case had been initiated in 2011 and the dispute was ultimately resolved by the Supreme Court in 2017. In the ultimate adjudication, the Supreme Court merely protected appointments made under the interim orders of the Court. Contempt petitions filed before the Supreme Court at the instance of leftover 12091 shortlisted candidates has also been dismissed in 2019. Claim of writ petitioners that they were appointed or that their appointment was included in 66655 appointments protected by the Supreme Court is found misconceived, inasmuch as, only 391 from 12091 shortlisted candidates were actually appointed and the figure of 66655 appointments consisted of other candidates and not the leftover candidates from 12091 shortlisted candidates. Repeated rounds of writs filed before this Court also failed. After expiry of nearly 13 years, a direction in favour of these shortlisted candidates ought not to be issued on their mere asking in derogation of the previous adjudication made by this Court and the Supreme Court. In such view of the matter, the special appeals filed by the Board and the State succeed and are allowed. Judgment and order passed by the learned Single Judge on 12.1.2014 in bunch of writ petitions is set aside. All the writ petitions filed before the learned Single Judge are consequently dismissed.

105. Since the claim of 12091 candidates has already been rejected after noticing that the Supreme Court itself had recorded a finding in 2019 itself that there has been no violation of the orders of the Supreme Court, as such, the claim of other petitioners, who were not included in the list of 12091 candidates has rightly been rejected by the learned Single Judge in para 15 of the judgment. Special appeals filed by such candidates, not forming part of 12091 candidates, are also accordingly dismissed for the reasons recorded above.

106. In the facts of the case, no order is passed, as to costs.

Order Date :- 16.4.2024 Anil/RA/Ranjeet Sahu (Syed Qamar Hasan Rizvi,J.) (Ashwani Kumar Mishra,J.)

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