Allahabad High Court
Jawahar Lal And Ors. vs State Of U.P.Thru.Prin.Secy.Basic ... on 18 January, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. In both the writ petitions, the common issues are involved, hence the same are being decided by means of this common order. For the sake of brevity, the facts as narrated in writ petition no.1389(SS) of 2021, are being recorded.
2. Heard Shri Sudeep Seth, learned Senior Advocate assisted by Shri Sridhar Awasthi, learned counsel for the petitioners in Writ Petition No.1389(SS) of 2021 and Sri Satyendra Kumar Tiwari the counsel for the petitioner in Writ A No.7769 of 2021 and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the respondents.
3. Without going into the depth of the arguments raised by the counsel for the petitioner suffice to say that the present petition has been filed in the light of the observations made in para 68 in the judgment delivered by the Supreme Court in Civil appeal no.3707 of 2020 arising out of SLP (C) No.6841 of 2020 (Ram Saran Maurya and others vs. State of U.P. and others). For the sake of brevity, paragraph 68 of the judgment is quoted herein below :
"In the appeals preferred by ex-servicemen or persons with disability, it was submitted that as against the vacancies earmarked for these categories, very few candidates had applied and at 65-60% cut off, the number of qualified candidates was far lesser. The cut off at 65-60% having been held valid and justified, these appeals are also dismissed. If there are less number of candidates against the vacancies for these categories, such vacancies shall be subject to the Rules in that behalf. If the vacancies cannot be carried forward, the same shall and must ensure to the advantage of the candidates in the present selection."
4. The contention of the counsel for the petitioner is that admittedly the number of persons applying, claiming reservation for ex-servicemen was less than the requirement.
For the sake of brevity, a chart has been prepared in paragraph 19, which are quoted herein below :
Category Seat Allotted 5% Ex-Servicemen Seats 60% Marks passed - Selected and Appointed Balance Seats lying vacant Ex-Servicemen Appeared, not Selected General 50% 34500 1725 170 1555 230 OBC 27% 18630 932 179 753 326 SC 21% 14490 724 69 655 68 ST 2% 1380 69 8 61 28 Total 69000 3450 426 3024 652
5. Shri Seth, learned Senior Advocate argues that in the light of the observations made in para 68 of the judgment that it was incumbent upon the State Government to have relaxed the condition so as to ensure that the benefit of reservation is granted to the ex-servicemen which has not been done.
6. The contention of Sri Seth, Senior Advocate has to be seen in the light of the judgment of the Supreme Court in the case of Ram Saran Maurya (supra) as well as the rules applicable to the appointment.
7. The issue with regard to the appointments to the post of Assistant Teachers to be made in respect of the advertisement issued by the State was thrashed out by the Supreme Court. While doing so, the case of the contesting parties was noted. The Court also noted the rules notified as Uttar Pradesh Basic Education (Teachers) Services Rules 2017 as amended from time to time including the 20th Amendment whereby the rules were amended in the year 2017. The Supreme Court after taking into consideration the respective contentions of the parties directed for affording an opportunity to Shiksha Mitra to apply in the next session.
8. In view of the submissions made by the State and as recorded in the judgment with regard to the claim of the ex-servicemen who were also heard before the Supreme Court, the Supreme Court was of the categorical view that the cut-off prescribed at 65-60% was a valid criteria provided for by the State and the said contention of ex-servicemen on that count was rejected, however, the Supreme Court while doing so had provided that in case there are less number of candidates against the vacancies for these categories, such vacancies shall be subject to the rules in that behalf and second observation was that if the vacancy cannot be forwarded, the same shall and must enure to the advantage of the candidates in the present selection.
9. To test the said two liberties granted in the observations made by the Supreme Court in reference to the arguments of Sri Sudeep Seth that the cut off prescribed should be lowered so as to ensure that all the vacancies reserved and earmarked for ex-servicemen should be filled, merits rejection for the simple reason that the qualification prescribed for appointment are contained in the Uttar Pradesh Basic Education (Teachers) Service (20th Amendment) Rules 2017 which clearly prescribed for the eligibility to be possessed for appointment as an Assistant Teacher and one of the requirement is specified, 'as having qualifying marks of Assistant Teachers Recruitment Examination'.
Rule 10 as amended further clarifies that the qualifying marks would mean such minimum marks as may be determined from time to time by the Government. Thus, for being eligible for consideration for appointment, it is must that the candidate desirous of seeking appointment should possess the qualifying criteria including having obtained the qualifying marks of Assistant Teacher as may be determined from time to time by the Government.
10. In respect of the examination in question, the qualifying marks were determined by the State Government as 65-60%, which has been held to be a valid classification by the Supreme Court in the case of Ram Saran Maurya and others vs. State of U.P. and others (supra). Thus, I have no hesitation in holding that the petitioners did not possess the minimum qualification which is required for consideration for appointment, the liberty granted by the Supreme Court is only in respect of the candidates to be filled subject to the rules in that behalf, once the petitioners do not possess the minimum qualification, consideration of their candidature would clearly be contrary to the Rules.
11. As regards the second submission with regard to the fact that if the vacancies cannot be carried forwarded, the same shall and must enure to the advantage of the candidates in the present selection.
12. Sri Seth has taken me through the provisions with regard grant of reservation to ex-servicemen as provided in terms of the enactment known as 'The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen), Act 1993'. The said enactment provided for reservation at the stage of direct recruitment in favour of physically handicapped, dependents of freedom fighters and ex-servicemen. Section 3(5) of the said Act specifically provided that the vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment. Section 3 of 1993 Act prior to its amendment is quoted herein below :
3. Reservation of vacancies in favour of physically handicapped etc. (1). In public services and posts in connection with the affairs of the State, there shall be reserved five per cent of vacancies at the stage of direct recruitment in favour of--
i. physically handicapped, ii. dependents of freedom fighters, and iii. ex-servicemen.
(2). The respective quota of the categories specified in sub-section (1) shall be such as the State Government may from time to time determine by a notified order.
(3). The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be Placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary arrangements.
(4). For the purposes of sub-section (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be;
Provided that at no point of time the reservation shall, in the entire strength of cadre, or service, as the case may be, exceed the quota determined for respective categories.
(5). The vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment."
13. The said Section 3 of the Principal Act was amended by the U.P. Act No. 6 of 1997 and Section 3(5) after its amendment w.e.f. July 9, 1997 reads as under :
(5). Where, due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried over to the next recruitment.
14. Section 3 (5) of the Act was amended again by virtue of the U.P. Act No.8 of 2008 wherein a provision was made that in the event of non-availability of a suitable candidate in respect of the persons who were granted reservation, it shall be carried forward for further two selection years whereafter it may be treated to be lapsed. The relevant paragraph is quoted herein below :
2. In section 3 of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen), Act 1993, for sub-section (5) the following sub-section shall be substituted namely -
(5). Where, due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried forward for further two selection years, whereafter it may be treated to be lapsed"
15. The said Act further stood amended in the year 2016 by virtue of U.P. Act no.12 of 2016 and Section 3(5) of the Principal Act was omitted without providing for any saving clause. Section 2 of the Amending Act No.12 of 2016 is quoted herein below :
"2. In section 3 of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen), Act 1993 sub-section (5) shall be omitted.
16. In view of the omission of Section 3(5) which prohibited the carrying over the vacancies, stood omitted, the second contention of the counsel for the petitioner in the light of the observations made by the Supreme Court in para 68 of the judgement in the case of Ram Saran Maurya (supra), quoted above, also merits rejection more so in view of the fact that there is no challenge to the appointments made by the respondents in respect of the appointments on the post of Assistant Teacher in the Recruitment Examination of 2019.
17. Thus, for all the reasons quoted above, the writ petition no.1389 of 2021 lacks merit and is dismissed.
18. In respect of the averments made in the Writ Petition No.7769 of 2021 where the petitioners are claiming the benefits of lowering the bar, as claimed by the petitioners of Writ Petition No.1389 of 2021 on the ground that they are entitled to reservation on account of they being physically handicapped, Sri Satyendra Kumar Tiwari adopts the arguments raised by Sri Sudeep Seth, the learned Senior Advocate and argues on the same line as argued by Sri Seth and places reliance on the observations made by the Supreme Court in paragraph 68 of the judgment in the case of Ram Saran Maurya (supra). The said contention of the counsel for the petitioners merits rejection on the same grounds on which the Writ Petition No.1389 of 2021 has been dismissed. Thus, the writ petition no. 7769 of 2021 is also dismissed.