Allahabad High Court
Mukesh Chaturvedi vs State Of U.P. & Others on 8 September, 2010
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved Court No.18 **** *** **** Civil Misc. Writ Petition No. 16156 of 2010 ~~~ ~~~ ~~~ Mukesh Chaturvedi vs. State of U.P. & others == == == == == Connected with **** *** **** Civil Misc. Writ Petition No. 1662 of 2010 ~~~ ~~~ ~~~ Sushil Kumar Pandey vs. State of U.P. & others == == == == == Connected with **** *** **** Civil Misc. Writ Petition No. 1665 of 2010 ~~~ ~~~ ~~~ Ramesh Kumar Mani Tripathi & others vs. State of U.P. & others == == == == == Connected with **** *** **** Civil Misc. Writ Petition No. 9311 of 2010 ~~~ ~~~ ~~~ Mukesh Kumar Arora & others vs. State of U.P. & others == == == == == Connected with **** *** **** Civil Misc. Writ Petition No. 5681 of 2010 ~~~ ~~~ ~~~ Sanjay Kumar Sharma & & others vs. State of U.P. & others == == == == == Connected with **** *** **** Civil Misc. Writ Petition No. 14094 of 2010 ~~~ ~~~ ~~~ Ramesh Singh Yadav vs. State of U.P. & others == == == == == Connected with **** *** **** Civil Misc. Writ Petition No. 19559 of 2010 ~~~ ~~~ ~~~ Sarla Pandey & Anr. vs. State of U.P. & others == == == == == Connected with **** *** **** Civil Misc. Writ Petition No. 68624 of 2009 ~~~ ~~~ ~~~ Indu Kumari Chaurasia vs. State of U.P. & others == == == == == Hon'ble Arun Tandon, J.
Heard Sri A.K. Yadav, learned counsel for the petitioners (in writ petition nos. 16156 of 2010, 1662 of 2010, 1665 of 2010, 9311 of 2010, 14094 of 2010), Sri A.K. Pandey, learned counsel for the petitioners (in writ petition no. 5681 of 2010), Sri Niraj Tiwari, learned counsel for the petitioners ( in writ petition no. 19559 of 2010, Sri O.P. Chaurasiya, learned counsel for the petitioner (in writ petition no. 69624 of 2009) and Sri R.N. Singh, learned Senior Advocate, assisted by Sri K.S. Kushwaha, learned Standing Counsel for the State-respondents (in all the writ petitions).
This is fourth round of litigation in respect of admission to Basic Teaching Certificate Course-2001 (hereinafter referred to as the "BTC Course-2001"). All these eight writ petitions have been clubbed together and are being decided under this common judgement. Facts common to all these writ petitions may be stated at the outset.
Proceedings for admission to BTC Course-2001 (two years course) to be imparted by the various District Institutes of Education & Training situate at various districts of the State of Uttar Pradesh as per the policy decision of the State Government contained in the Government Order dated 26th November, 2001 was initiated with the publication of the advertisement dated 1st December, 2001. Various categories of reservation was provided under the Government Order.
Merit of the applicants for admission was to be determined on three criteria, (a) marks granted as per academic mark-sheets i.e. quality point marks, (b) extra quality point marks for NCC etc., and (c) marks obtained in the written test to be held for the purpose, maximum whereof was prescribed as 100 marks. Results were to be prepared category wise having regard to the reservation applicable. The total of the marks obtained by the applicants under the three aforesaid heads, was to be the determining factor for the placement in the merit list. A wait-list upto 20% of the seats within each category along with the main merit list, was also to be prepared in order of merit. Admission was to be granted only after verification of the testimonials during counselling.
The total number of vacancies available for BTC Course-2001 was 5600. These seats were distributed amongst various District Institutes of Education & Training situated within the State of Uttar Pradesh. In response to the advertisement, as many as 5,88,128 candidates applied. Private computer firms were engaged for conducting the written examination. Nearly 21,200 applicants were permitted to appear, even when their application-forms were not found available. Written examination was held on 28th April, 2002, and it was only after writ petitions were filed before the Hon'ble High Court that the results were declared on 23rd May, 2003 district-wise.
Even before the admission could be granted to selected applicants, serious complaints were received by the State Government in respect of written examinations held, as well as in respect of declaration of the results. One Sri Ravi Pratap Verma, Joint Director of Education was required to hold an enquiry and to submit his report. Matter was also referred for vigilance enquiry. While the aforesaid enquiries were still in progress, the selected applicants were admitted on the basis of declaration of the results and were also permitted to complete their first year training and to appear in the first year examination. They were also permitted to participate in the second year of training of BTC Course-2001.
It will not be out of place to record that large number of applicants, who claimed that they were entitled to be admitted in preference to other applicants as they had secured better position in merit than the last candidate admitted or that their candidature has not been considered within the reserved category applicable, filed writ petitions before the Hon'ble High Court seeking admission to BTC Course-2001. Details of few such writ petitions and the orders passed therein shall be referred to latter by this Court, when individual facts of the writ petitions will be noticed.
Before the result of the second year examination of the admitted candidates could take place, Cabinet of ministers of the State of Uttar Pradesh took a decision on 17th October, 2005 to cancel the entire admission pertaining to BTC Course-2001. The applicants, who had appeared in BTC Course-2001 examination were granted permission to appear in the admission test to be held in the 2005 without they being required to deposit any fresh fees and wherever necessary age relaxation was also to be granted.
In terms of the decision of the Cabinet of ministers, Government Order dated 20th October, 2005 was issued. The Government Order after noticing serious irregularities committed prior to the holding of the written examination and those committed during and after the written examinations, directed that disciplinary enquiry against the officers responsible for holding the entrance examinations be initiated and they be placed under suspension. Against five computer-firms, which were allotted work of holding written examinations, First Information Report was lodged on 19th September, 2005. The decision taken by the State-Government as per paragraphs-3, 4 and 5 of the Government Order are relevant for our purpose and read as follows:
"izs"kd] ts0,l0 nhid] lfpo m0iz0 'kklu lsok essa] funs'kd] jkT; 'kSf{kd vuqla/kku ,oa izf'k{k.k foHkkx m0iz0 y[kuÅA f'k{kk vuqHkkx & 1 y[kuÅ fnukad : 20 vDVwcj] 2005 fo"k; %& ch0Vh0lh0 izos'k ijh{kk 2001 dh p;u izfØ;k fujLr dj iqu% izos'k ijh{kk dk volj fn;s tkus lacaa/k esaA 1----------------------------------
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3- mi;qZDr of.kZr fLFkfr esa eq>s vkils ;g dgus dk funsZ'k gqvk gS fd ch0Vh0lh0 izos'k ijh{kk 2001 esa O;kid gsjQsj vkSj vfu;ferrkvksa dks /;ku esa j[krs gq,] bls fujLr uhfrxr fu.kZ; fy;k x;k gSA 4- 'kklu }kjk ;g Hkh fu.kZ; fy;k x;k gS fd pwWfd ch0Vh0lh0 izos'k ijh{kk 2001 ds p;fur vH;FkhZ 2 o"kZ dk izf'k{k.k izkIr dj pqds gSa] vr% mudks o"kZ 2005 esaa vk;ksftr gksus okyh ch0Vh0lh0 ijh{kk esa cSBus dh vuqefr fo'ks"k izko/kku ds varxZr] fcuk izos'k ijh{kk 'kqYd fy;s iznku dh tk;sA blds fy;s vk;q esa f'kfFkyrk ;fn vko';d gks] rks mls Hkh iznku fd;k tk;sA ch0Vh0lh0 izos'k ijh{kk 2005 esa orZeku izf'k{k.k izkIr dj pqds vH;FkhZ ;fn lQy gks tkrs gS rks mUgsa iqu% izf'k{k.k ysus dh vko';drk u ekurs gq, ,u0lh0Vh0bZ0 lger ls rRdky lgk;d v/;kid ds in ij ifj"knh; fo|ky;ksa esa fu;qDr fd;k tk;sA 5- vr% bl lEcU/k esa eq>s vkils ;g dgus dk funsZ'k gqvk gS fd d`i;k ch0Vh0lh0 2001 ds p;u dh iqu izos'k ijh{kk ch0Vh0lh0 izos'k ijh{kk 2005 ds lkFk djk;s tkus ds laca/k esa le;c)] lE;d iw.kZ izLrko 'kklu dks voyEc miyC/k djkus dk d"V djsaA"
The said Government Order was subjected to challenge by means of large number of writ petitions by persons, who had been admitted to B.T. C. Course 2001 before the High Court, leading writ petition being Civil Misc. Writ Petition No. 69091 of 2005 (Vinod Kumar Yadav & others versus State of U.P. & others). The writ petitions were decided by Single Judge vide common judgement and order dated 24th April, 2006. The learned Single Judge after noticing the various contentions raised on behalf of the petitioners and after taking note of the facts on record held that entire examinations pertaining to BTC Course-2001 were vitiated because of serious malpractices, which were on such a large scale that it was impossible to find out as to who has been wrongly admitted and as to who has been deprived of selection despite merit. It was held that compliance of principles of natural justice, in these set of circumstances, would be an empty formality. Since under the Government Order dated 20th October, 2005, the applicants of BTC Course-2001 were required to appear in entrance examination for admission along with applicants, who would apply for admission to BTC Course-2005, the Court found it just and proper to provide that re-examination for the applicants of B.T.C. Course-2001 should be conducted, separately, instead of their being asked to compete with the applicants, who had subsequently acquired qualifications, and have become eligible to apply for the first time in respect of admission to BTC Course-2005. Therefore, the Court proceeded to uphold the Government Order dated 20th October, 2005 with a modification/direction that the entrance examination for admission to BTC Course-2001 shall be conducted by the State-Government separately from the applicants, who had undertaken the examination on the last occasion. Such applicants, who succeed in the entrance examination, and who were admitted earlier and have completed their 2 years training under the cancelled entrance examination of BTC Course-2001 were exempted from undergoing the training of two years afresh. The Court further clarified that the order of the Court will not prevent the State-Government from holding a separate entrance examination in respect of admission to BTC Course-2005 or any other examination in that respect.
It would be relevant for our purposes to quote the last three paragraphs of the judgment of the Hon'ble Single Judge dated 24th April, 2006, which read as follows:
"In matters like one in hand, wherein entire examination is vitiated on account of malpractices being adopted then individual case of innocence looses its relevance. Compliance of natural justice in such a situation would not be possible as mischief played is so widespread and all pervasive affecting the result making it not only difficult but impossible to find out persons who have been wrongfully deprived of their selection. Here no individual has been charged for using or adopting unfair means so that he can defend himself, rather to the contrary entire examination has been held to be vitiated on account of adoption of malpractice by authorities on large scale, as such entire examination has been undone. Hon'ble Apex Court in the case of Bhihar School Exam Board vs. S.C. Sinha, reported in 1970 (1) SCC 648 has taken the view that individual notice to candidates for providing opportunity was not necessary for representing their case, when entire examination was being cancelled. Guilt of selected candidates is not the question, the larger question is can such an examination tainted with malpractices be acted upon, specifically when the candidates are to function as teachers in primary institution or Junior High School in future. The answer in public interest would be no. State Government has chosen not to give clearance to the said examination tainted with malpractices and this Court cannot otherwise direct.
Arguments have also been advanced that petitioners have been forced to compete with un-equals and the benefit which has been extended to the candidates who are selected is that they shall not be required to undergo further training subject to approval by National Council for Teachers Educations. Here examination has been cancelled on the ground of malpractice. It would have been much more appropriate in case re-examination was conducted and opportunity was afforded to each and every candidate who had undertaken the examination in the past in stead of asking the petitioners to compete with candidates who have subsequently acquired qualification.
In these circumstances and in this background present bunch of the writ petition are dismissed with observations that examination for Basic Teachers Certificate-2001 be conducted by the State Government only amongst candidates who had undertaken examination on the last occasion and in case petitioners are successful then petitioners be not forced to undergo training. Passing of this order will not prevent the State Government from undertaking subsequent B.T.C. Examination 2005 or any other examination in this respect."
The judgment and order of the Hon'ble Single Judge was subjected to challenge by means of Special Appeals, leading case being Special Appeal No. 553 of 2006 (Santosh Kumar Shukla & others Versus State of U.P. & others). All the special appeals were clubbed together and heard by a Division Bench of this Court. The special appeals filed by the candidates were dismissed vide judgement and order dated 31st August, 2007. It would be worthwhile to reproduce the following paragraphs of the Division Bench Judgement:
"Now coming to the last aspect of the matter whether equity and justice require that the candidates having completed two years of training ought not to have visited penal consequences and, therefore, the State Government's decision should have been set aside. We find that it is true that due to ongoing enquiry and time taken therein, in the meantime the candidates, who were selected and admitted had devoted their two years valuable time for the purpose of undergoing the B.T.C. Training and we also feel that it would be hard on the part of such candidates who are ultimately excluded having spent their two years valuable time undergoing such training but in the facts and circumstances of the particular case, we find that the State Government has taken a correct decision and also has taken care of training undergone by the genuine persons by providing in the order impugned in the writ petition that after having fresh entrance test, the candidates who are ultimately found successful, if had already undergone training, would not be required to undergo such training afresh but the earlier training shall be treated to be a valid training and shall entitle those candidates for appointment in accordance with the rules on the basis of the said training. This takes care of the genuine candidates who have already undergone B.T.C. Training but those who failed to get selection cannot claim any benefit since the beneficiaries of wrongful means or wrongful selection are liable to loose the benefit acquired on the basis of such tainted selection and no equity would lie in their favour. In the entirety of the circumstances and in view of the above discussion, in our serious consideration, though we find that it was a hard case but still we are bound to decide the matter in accordance with law since rule of law is to prevail and equity and good conscious needs to be observed within four corners of rule of law.
The learned counsel for the appellants also pointed out that though as a result of the impugned order cancelling the entire selection, the appellants have been made to suffer by putting their two years' training in peril, but nothing has been done against the officials who alleged to be responsible for such irregularities/illegalities. On the contrary, the learned Chief Standing Counsel submitted that not only a first information report was lodged against the erring officials, but disciplinary proceedings were also initiated against them but some of them have approached this Court wherein certain interim orders have been passed staying their arrest and/or suspension as the case may be.
Be that as it may. We have no hesitation in observing that of late this Court is flooded by the cases involving wide spread malpractice and challenging the decision taken by the authorities to cancel such selection. The candidates, who have either got selected or managed to get selected and sometimes even a few bona fide honest candidates who have suffered on account of large scale malpractice of other raise such dispute. The situation has arrived at on account of general deterioration in the society. We are at pain to observe that it is so wide spread that now the people do not feel shame or repentance in taking recourse of such activities and, thereafter, in making all out efforts to retain the fruits. Corruption, favouritism and nepotism, unfortunately, has become order of day and is affecting the whole society like cancer and AIDS. Corrupt people have taken place of pride in the society. They are supported by the hypocrites committed in broad day light and as a result, the society is affected. The graph of crime and corruption has reached such a height that unless a consolidated effort by right minded people would not come forward to counter, it may lead to disorder, social and political. We are not unmindful that the Court has a vital role to play in such matters as and when it come to its notice. In the present case, we hope and trust that the State Government shall take expeditious steps to give finality in respect to disciplinary proceedings against the erring officials and shall pass appropriate orders which may prove to be a lesson not only to them but to others also.
In the result, we are in respectful agreement with the Hon'ble Single Judge. The appellants are not entitled for any relief. The appeals, therefore, lack merit and are, accordingly, dismissed. No order as to cost."
In order to keep the record straight, it may be pointed out that the State Government filed an application for modification of the judgement and order dated 24th April, 2006 passed Hon'ble V.K. Shukla, J. in Civil Misc. Writ Petition No. 69091 of 2005 (Vinod Kumar Yadav & others versus State of U.P. & others), being Civil Misc. Modification Application No. 62110 of 2008. The said application was rejected by Hon'ble Prakash Krishna, J., vide order dated 1st May, 2008 after observing that since the judgement and order of the Single Judge has merged with the judgment and order of the Division Bench comprising of Hon'ble S. Rafat Alam, J. and Hon'ble Sudhir Agarwal, J. dated 31st August, 2007 passed in Special Appeal No. 553 of 2006, modification, if any, can be asked for in the Special Appeal itself. The proper remedy for the State was to file an appropriate application, if so advised, in the Special Appeal.
After the said Division Bench Judgement of this Court, the State Government issued a Government Order dated 29th December, 2008. Under the said Government Order, a decision was taken to amend the Government Order dated 20th October, 2005 (the legality whereof was uphold by the writ court as well as by the Division Bench of this Court) and it was decided that a separate examination for candidates who have completed training of two years BTC Course-2001 and had appeared in the second year examination of training, be held and if they achieved 33% marks in the said examination, they may be offered appointment as Assistant Teachers in Parishidiya Vidyalayas. Government Order dated 20th October, 2005 be treated to be amended accordingly. It is worthwhile to reproduce the Government Order dated 29th December, 2008 which read as follows:
la[;k&lh-,e- 134@15&11&2008&1499¼409½@03 izs"kd] ch0,u0xxZ] izeq[k lfpo] mRrj izns'k 'kkluA lsok esa] funs'kd] ,l0lh0bZ0vkj0Vh0 m0iz0 y[kuÅA f'k{kk vuqHkkx&11 y[kuÅ% fnukad% 29 fnlEcj] 2008 fo"k; % ch0Vh0lh0 izos'k ijh{kk 2001 dh p;u izfØ;k fujLr dj iqu% izos'k ijh{kk dk volj fn;s tkus ds laca/k esaA egksn;] mi;qZDr fo"k;d 'kklukns'k la[;k 963@15&11&2005&1499¼409½@03 fnukad 20-10-2005 dk d`i;k lanHkZ xzg.k djsaA 2- bl laca/k esa eq>s vkils ;g dgus dk funsZ'k gqvk gS fd 'kklu }kjk fopkjksijkUr mDr 'kklukns'k fnukad 20-10-2005 esa vkaf'kd la'kks/ku djrs gq;s ;g fu.kZ; fy;k x;k gS fd ^ch0Vh0lh0 izos'k ijh{kk&2001 esa nks o"kZ dk izf'k{k.k izkIr fd;s gq, ,oa f}rh; o"kZ dh ijh{kk esa lfEefyr vH;fFkZ;ksa dh vyx ls izns'k Lrj ij ijh{kk djkdj] U;wure 33 izfr'kr mRrh.kkZd izkIr dj lQy gq, dj vH;fFkZ;ksa dh ifj"knh; fo|ky;ksa esa lgk;d v/;kid ds in ij fu;qfDr dj nh tk;saA* 3- 'kklukns'k la[;k 963@15&11&2005&1499¼409½@03] fnukad 20-10-2005 mDr lhek rd la'kksf/kr le>k tk;sA 'kklukns'k fnukad 20-10-2005 dh 'ks"k 'krsZa ;Fkkor~ jgsaxhA d`i;k rn~uqlkj dk;Zokgh lqfuf'pr djkus dk d"V djsaA Hkonh;
¼ch0,u0 xxZ½ izeq[k lfpo On the strength of the aforesaid Government Order, the State Government notified 1st February, 2009 as the date for holding examination for the candidates admitted under the cancelled entrance examination of B.T.C. Course-2001.
Some of the petitioners before this Court, who were not issued call letters/ information of the said examination to be held on 1st February, 2009, filed a bunch of writ petitions along with other candidates being leading writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others). In the said writ petition a detail order was passed on 1st September, 2009 categorically observing that there is little or no justification for discrimination between the candidates, who had been illegally granted admission, completed two years training and have appeared in the second year examination, vis-a-vis the candidates like the petitioners (of those petitions), who have been granted admission (after they had approached this Court and their cases were directed to be considered) by the authorities themselves, on merit determined on the basis of same cancelled entrance examination but could not complete their second year training because of Government Order dated 20th October, 2005. Two sets of candidates formed one group, namely, those admitted under the same cancelled entrance examination. This Court held that there is little or no justification for segregation of these two same class of candidates and the discrimination practised was arbitrary. The Court directed that the Secretary, Basic Education, U.P. Lucknow must pass a reasoned speaking order within two weeks from the date of production of the certified copy of the order.
An affidavit was filed by the Secretary seeking time to comply with the order dated 1st September, 2009. The Court on 17th September, 2009 disposed of the second bunch of writ petitions after quoting the order dated 1st September, 2009 with a direction upon the Secretary, Basic Education to take appropriate decision on or before 12th October, 2009.
It would be worthwhile to reproduce the judgment and order dated 17th September, 2009 which reads as follow:
"The Secretary, Basic Education seeks time to comply with the direction issued by this Court vide order dated 01.09.2009. However, having regard to the reasons detailed in the order dated 01.09.2009, which is quoted below:
"Advertisement for admission to BTC two years course was published in the year 2001 in various districts of the State of Uttar Pradesh. Petitioners before this Court applied in pursuance thereof. They were admitted under orders of this Court in earlier petitions within the category concerned. This bunch of writ petitions has been filed seeking quashing of part of the Government Order dated 29.12.2008 and for a mandamus for permitting the petitioners to participate in the Special Examination of 2009 and for necessary action thereafter.
Facts in short leading to the filing of these petitions are :
The petitioners who had applied for admission to BTC Course 2001 were not admitted despite number of vacancies within the category being available. Persons lower in merit were granted admission. They, therefore, filed two writ petitions being Civil Misc. Writ Petition No. 31281 of 2003 and no. 32789 of 2003 before this Court. The petitions were decided under the judgement and order dated 12.11.2003 requiring the respondent authorities to consider the claim of similarly situate persons for admission to BTC Course 2001, within the time specified. In compliance to the order of the Court, admission to the petitioners was granted on 08.09.2004 and they were permitted to undergo the training. The 1st year examination of the Course took place between 02.01.2005 to 11.01.2005. The petitioners have appeared in the examination but their results were not declared. The training for the 2nd year commenced on 12.01.2005 and the petitioners were permitted to participate in the said training. The 2nd year training course was completed qua some petitioners on 15.06.2005. The petitioners were not permitted to appear in the 2nd year examination on the plea that they had not completed requisite number of days of teaching namely 180 days as required under the National Council for Teachers Education Regulations. Even in respect of those candidates who had appeared in the 2nd year examination other than the petitioners, results were not declared. At this stage the State Government came out with a Government Order dated 20.10.2005 (copy whereof has been produced before this Court) wherein it is mentioned that large scale bungling was noticed in admission to BTC Course 2001 and, therefore, a decision has been taken to cancel the entire selection of BTC Course 2001 with a further direction that the students who had completed two years training will be permitted to appear along with candidates of BTC Course 2005 in the examination to be held and for that purpose they will not be required to deposit any further fee. If such candidates are successful in the examination they shall be offered appointment as Assistant Teacher in Parishadiya Vidyalaya. Writ petition filed against the said order of cancellation dated 20.10.2005 was dismissed. The order of the Hon'ble Single Judge was also affirmed with the dismissal of the Special Appeal.
After nearly 3 years thereafter the State Government came out with a fresh Government Order dated 29.12.2008 which provides that candidates admitted to BTC Course 2001 who had completed 2 years training and had also appeared in 2nd year examination of the training, would be permitted to appear in the Special examination to be held in the year 2009 and in case they get 33% marks, they shall be treated to have passed the BTC Examination, 2001 and would become entitle to be appointed as Assistant Teacher in Parishadiya Vidyalaya.
It is against this order that the present writ petitions have been filed. According to the writ petitioners the Government Order is discriminatory in nature inasmuch as it carves out a class from the homogeneous group of candidates admitted to BTC Course and therefore, arbitrary.
Counsel for the petitioner points out the Government Order creates 3 categories from amongst candidates admitted to BTC Course 2001 i.e. :
a. Students who were admitted to BTC Course and had completed 2 years training and had further appeared in 2nd year examination.
b. Candidates who were admitted after orders of the Hon'ble High Court and who had completed 2 years training but were not permitted to appear in the 2nd year examination.
c. Candidates who were admitted to BTC Course 2001 under orders of the court but were not permitted to complete their training in view of the Government Order dated 20.10.2005.
According to the writ petitioners the responsibility of completing the training and holding the examination is upon the DIET and if there is any lapse on their part the petitioners can not be permitted to suffer. Under Government Order dated 20.10.2005 serious infirmities qua selection to the BTC Course 2001 were noticed and, therefore, the entire BTC Course 2001 was cancelled. However admitted candidates were permitted to appear in examination to be held for BTC Course 2005 and no distinction was made between the candidates who had completed the training and had appeared in the 2nd year examination viz a viz the students who had completed the training but had not been permitted to appear in the 2nd year examination. It is submitted that there is little or no justification for special favour to a group of candidates who had appeared in 2nd year examination vis a vis candidates were permitted to complete the training but were not permitted to appear in the 2nd year examination held for the purpose or those who were not permitted to complete the training because of Government Order dated 20.10.2005. In support of the plea counsel for the petitioner has made reference to two additional facts :
a. The result of none of the candidates of BTC Course 1st year examination was declared and all were permitted to undertake the BTC training Course of 2nd year irrespective of the fact that they had passed the first year examination or not.
b. Principal of various DIET had specifically informed the State Government that although 180 days teaching had not taken place qua some of the candidates but teaching work was completed by taking extra classes.
Lastly it is pointed out that the State Government itself has taken a decision to permit all such students who had completed 2 years training in response to the admission to BTC Course 2001 by holding a separate examination in the year 2009 and there is little or no justification for denying permission to the candidates like the petitioner. It is also brought to the notice of the Court that under interim order of this Court the petitioners have been permitted to appear in the examination of 2009 but their results have not been declared.
Having heard learned counsel for the parties and having gone through the records of the petitions, I am of the considered opinion that the controversy with regards to the admission granted to BTC Course 2001 must be brought to rest at the earliest possible inasmuch as 8 years have elapsed since the date of advertisement. The foundation for issuance of the Government Order dated 20.10.2005 was the report obtained qua large scale bungling in the selections to BTC Course 2001. The State Government under order dated 29.12.2008 for the reasons best known to it has decided to forgo the discrepancies in the selections inasmuch it has permitted the admitted candidates to appear in the Special Examination 2009 with a rider that if they secure 33% in Special Examination of 2009 they shall be offered appointment as Assistant Teacher in Parishadiya Vidyalaya, meaning thereby that the State Government irrespective of the irregularities/illegality qua admissions to the Course has decided to permit the admitted candidates to appear in the Special Examination-2009.
Petitioners before this Court who are similarly situate and who were granted admission under orders of this Court are to be treated similarly. Delay in their admission or denial of permission to appear in the 2nd year examination for the reason that the Training had not been completed for requisite days is all because of the action and in-action on the part of the authorities themselves for which the students cannot be penalized. If part of the teaching remains the same must be completed. The stand taken by the Principal, DIET that such training has been completed with the help of extra classes also needs examination by the State Government.
The Court fails to understand as to why mileage is to be provided to candidates who were wrongly admitted to the BTC Course 2001, under Government Order dated 29.12.2008 only because on the strength of such illegal selection they had completed the 2 years training and had appeared in the 2nd year examination. Persons who are higher in merit and were wrongly denied admission by the authorities illegally cannot be permitted to suffer for the said illegality.
In the totality of the circumstances as noticed herein above, this Court feels that all the candidates who have been admitted to BTC Course 2001, from a class as a whole inasmuch as the illegalities and selections have been condoned by the State itself.
It would be appropriate that the Secretary (Basic Education), U.P. Lucknow may examine the claim of the writ petitioners qua (a) declaration of their result of the Special Examination 2009 which they had undertaken under the interim orders of this Court (b) relaxation as and where required qua the teaching period as well as age and (c) to hold fresh examination in respect of the petitioners who have not been able to obtain interim order and, therefore, could not appear in Special Examination of 2009.
Let the Secretary pass a reasoned speaking order within two weeks from the date a certified copy of this order is filed before him. The order to be passed by the Secretary may be brought on record on 17.09.2009.
List on 17.09.2009.
Certified copy of this order shall be supplied to the learned Standing Counsel by 07.09.2009."
this Court feels that no purpose would be served by keeping the bunch of writ petitions pending any further.
Let the Secretary, Basic Education take appropriate decision in the matter on or before 12th October, 2009. The order so passed shall be communicated to the petitioners.
All the writ petitions stand disposed of accordingly.
Certified copy of this order may be supplied to the Standing Counsel by tomorrow i.e. 18.09.2009."
The Secretary in compliance of the order of this Court dated 17th September, 2009 referred to above, vide order dated 18th November, 2009 rejected the representations made by the present petitioners, (who were also petitioners in the said bunch of writ petitions except petitioners in writ petition 19559 of 2010 (Sarla Pandey & Anr. vs. State of U.P. & others).
It has been held that since under the Government Order dated 29th December, 2008, special examination is to be held for the candidates, who had been admitted to BTC Course-2001, had completed their two years training and had further appeared in second year examination only, the petitioners did not satisfy the said requirement of having appeared in second year examination or to have completed two years training, therefore, no special examination qua the petitioners is to take place as their case is not covered by the Government Order dated 29th December, 2008.
It is against such orders of the Secretary dated 18th November, 2009 that all these writ petitions have been filed [except the writ petition no. 19559 of 2010 (Sarla Pandey & Anr. vs. State of U.P. & others)] with a further prayer that respondent-authorities may be directed to complete all the process of Basic Teaching Certificate Training Course-2001 as per the direction given by the High Court in its order dated 17th September, 2009 and to appointment the petitioners like similarly situate persons, who had been admitted pursuant to Entrance Examination for BTC Course-2001 and who are covered by the Government Order dated 29th December, 2008.
In writ petition No.19559 of 2010 (Sarla Pandey & Anr. vs. State of U.P. & others), a prayer has been made for a mandamus commanding the respondents to permit the petitioners to appear in the Ist Semester Examination of B.T.C. Course-2004 and to grant all consequential benefits to the petitioners, in the alternative to decide their representation dated 23rd September, 2009.
In order to complete the narration facts, it may be recorded that in the leading writ petition no. 16156 of 2010 (Mukesh Chaturvedi versus State of U.P. & others), a detail order was passed by this Court on 29th March, 2010 after prima facie recording that the Government Order dated 29th December, 2008 had the effect of diluting the directions issued by the Writ Court referred to above, the Secretary, Basic Education was asked to file his personal affidavit by way of show-cause as to why the Court may not proceed to impose exceptional cost for unnecessary litigation being generated. This Court found that the Government Order dated 29th December, 2008 infact overreached the judgment of the Division Bench and had the affect of perpetuating the illegalities committed by the State Authorities in granting admission on the basis of entrance test (ultimately cancelled by the State Government vide Government Order dated 20th October, 2005) held in the year 2002 for BTC Course-2001, as detailed above.
Affidavit was filed in compliance thereto, which did not appeal to the Court and therefore, the Court again reiterated that the Government Order dated 29th December, 2008 as well as the stand taken by the Secretary, Basic education have the affect of overreaching the judgment of the Court and infact interfered with the administration of justice by undermining the authorities of the judgement and order delivered by the High Court. Vide order dated 4th May, 2010, Secretary, Basic Education was, therefore, called upon to show-cause by way of affidavit as to why proceedings for contempt be not initiated against him for the reasons recorded.
Against the said order of the Writ Court, the Secretary, Basic Education filed Special Appeal Defective No. 489 of 2010 (State of U.P. Thru'. Secretary Basic Shiksha Anubhag vs. Mukesh Chaturvedi & others). The Division Bench of this Court vide order dated 13th May, 2010 disposed of the said special appeal after observing as follows:
"The learned counsel for the respondents having submitted that the larger issues with regard to interpretation of Rule 4 (a) of Chapter XXXV-E , may be examined in some other case and the Division Bench judgement in Prof. Y.C. Simhadri's case (supra) being a judgement of co-ordinate Bench, we are of the view that the order of the learned Single Judge initiating proceedings for contempt for punishing under the Act, 1971 in writ petition deserves to be set-aside with discretion to direct the papers to be placed before the learned Single Judge having jurisdiction to hear the contempt proceedings. We make it clear that we have neither gone in the various issues or merits of the case nor are required to go into the other observations and findings recorded by the learned Single Judge since the appeal has been confined only to last portion of the order as noticed above.
In the result the last portion of the order dated 04/5/2010, which is to the following effect is hereby set-aside.
"Therefore, let necessary notice be issued to the Secretary, Basic Education namely Jagdish Prasad to show cause by next date as to why proceedings for contempt be not initiated against him for the reasons recorded above."
Learned Single Judge may proceed with the hearing of the writ petition and pass appropriate orders with discretion to direct the papers to be placed before the learned Judge hearing contempt to proceed under Contempt of Court's Act. 1971.
The appeal is disposed of accordingly."
In light of the aforesaid direction issued by the Division Bench of this Court, all the writ petitions have been heard finally.
Original records were produced before the Court by the learned Standing Counsel, which were examined in his presence and were retained by the Court.
The Court may now notice the facts on record of these writ petitions individually.
1. Civil Misc. Writ Petition No. 16156 of 2010 (Mukesh Chaturvedi versus State of U.P. & ors.):-
This writ petition has been filed by Mukesh Chaturvedi. He had appeared in written (entrance) examination in respect of BTC Course-2001. He was issued letter dated 31st August, 2004 by the Principal, District Institute of Education & Training, Mathura stating therein that in terms of the order of the Writ Court dated 9th April, 2004 and the order passed in Contempt Petition No.1517 of 2004, he is entitled for admission to BTC Course within the reserved category of dependent of freedom fighter and he may therefore, deposit the admission fees today itself, so that admission may be completed. Petitioner is stated to have deposited his requisite fee and was admitted to the BTC Course-2001 in September, 2004.
In paragraph-16 of the writ petition it has been stated that he appeared in the first year examination and completed second year training also at District Institute of Education & Training, Mathura. He awaited declaration of result of first year examination as well as second year examination in pursuance to the BTC Entrance Examination, 2001. However, subsequent to the issuance of the Government Order dated 29th December, 2008, he was not invited to participate in the Special Examination to be held on 1st February, 2009. Therefore, he filed Civil Misc. Writ Petition No. 4011 of 2009 (Mukesh Chaturvedi vs. State of U.P. & others), which has been clubbed with writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others) and decided under common judgment and order dated 17th September, 2009 referred to above. Under the impugned order dated 18th November, 2009, the Secretary has rejected the representation made by the petitioner for being permitted to appear in Special Examination to be held on 1st February, 2009 only on the ground that he had not appeared in the second year examination of BTC course and therefore, his case is not covered by the Government Order dated 29th December, 2008.
2. Civil Misc. Writ Petition No. 68624 of 2010 (Indoo Kumari Chaurasia versus State of U.P. & ors.):-
It is stated that Petitioner applied and appeared in Entrance Examination of BTC Course-2001. She achieved better quality point marks within the category of Other Backward Class in female arts, but was not admitted. She filed Civil Misc. Writ Petition No. 31281 of 2003. In the writ petition, an interim order was passed requiring the respondents to keep one post vacant for the petitioner. The writ petition was allowed on 12th November, 2003 and a direction was issued to admit the petitioner to BTC Course-2001 within the Arts Group on production of a certified copy of the order. The order dated 12trh November, 2003 was not obeyed, therefore, she filed Contempt Petition No. 3698 of 2003. Bailable warrants were issued in the contempt proceedings on 26th July, 2004 and thereafter non-bailable warrants were issued on 17th September, 2004. The Principal, District Institute of Education & Training, Ghazipur was arrested in pursuance thereof and it was only then petitioner was admitted to BTC Course-2001 on 6th December, 2004. However, petitioner was not permitted to appear in the Special Examination to be held on 1st February, 2009 under the Government Order dated 29th December, 2010 and therefore, she filed writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others), which has decided under common judgment and order dated 17th September, 2009 referred to above. The Secretary vide order dated 18th November, 2009 has rejected her representation for appearing in the special examination on the ground that she has not completed the two years training course nor she appeared in second year examination of BTC Course-2001 and therefore, her case was not covered by the Government Order dated 29th December, 2008.
It may be recorded that under the order dated 27th August, 2004 granting admission to the petitioner in terms of the order passed in Civil Misc. Writ Petition No. 31281 of 2003 dated12th November, 2003, the Secretary, Examination Regulatory Authority, U.P., Allahabad had recorded that the petitioner is being admitted against a vacancy pertaining to BTC Course-2001 and that she shall be entitled for determination of her seniority along with the candidates of BTC Course-2001.
Counter affidavit has been filed on behalf of the State-respondents and it has been stated that petitioner was admitted to BTC Course-2001 in District Institute of Education and Training, Ghazipur on 17/27th September, 2004. She had not appeared in first year examination of 2001 as she had not completed the training nor she has appeared in the second year examination of BTC Course-2001. Therefore, her case was not covered by the Government Order dated 29th December, 2008. She is ineligible to appear in the special examination to be held on 1st February, 2009. It has been stated that in view of the Government Order dated 29th December, 2008, no mandamus can be issued for completing the training of the petitioner pertaining to BTC Course-2001.
3. Civil Misc. Writ Petition No. 14094 of 2010 (Ramesh Singh Yadav versus State of U.P. & ors.):-
This writ petition has been filed by Ramesh Singh Yadav. He was one of the candidates for admission to BTC Course-2001. He applied and appear in Entrance Examination of BTC Course-2001. However, he was denied admission within the ex-serviceman category. Therefore, he made a representation for admission from the waiting list, which has not considered. Therefore, he filed Civil Misc. Writ Petition No. 42907 of 2003, which was disposed of vide order dated 1st March, 2004 requiring the authorities to examine the grievance of the petitioner. In compliance to the order of the Writ Court, he was granted admission to BTC Course-2001 vide letter dated 25th September, 2004. The letter provided that the training of the petitioner shall take place along with candidates of BTC Course-2004. However, he will be entitled to seniority along with the candidates of BTC Course-2001. Petitioner has been denied permission to appear in Special Examination to be held on 1st February, 2009. Therefore, he filed Civil Misc. Writ Petition No. 2611 of 2009 (Harendra Bahadur Singh & others versus State of U.P. & others), which has been clubbed with writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others) and other writ petitions and decided under common judgment and order dated 17th September, 2009 referred to above. Under the impugned order dated 18th November, 2009, the Secretary has rejected his claim on the ground that he did not complete his training of BTC Course-2001 nor he was appeared in the second year examination of BTC Course-2001 and therefore, his case is not covered by the Government Order dated 29th December, 2008.
An affidavit has been filed on behalf of respondent no.3 and the reasons recorded in the decision of the State-respondents for rejecting the claim of the petitioner have been reiterated.
4. Civil Misc. Writ Petition No. 1662 of 2010 (Sushil Kumar Pandey versus State of U.P. & ors.):-
This writ petition has been filed by Sushil Kumar Pandey. He applied and appeared in Entrance examination of BTC Course-2001. He was empanelled at serial no.1/17 of the wait list. Under letter dated 5th September, 2003 he was asked to appear for counselling to be held on 15th September, 2003 and was admitted in response thereto. Petitioner was illegally restrained from pursuing his training. He therefore, filed Civil Misc. Writ Petition No. 10507 of 2004, which was disposed of vide order dated 12th May, 2004 requiring the authorities to examine the grievance of the petitioner. Thereafter petitioner was permitted to continue with his training. Petitioner is stated to have appeared in the first year examination and to have completed his second year training, but he was not permitted to appear in second year examination and in the meantime, the entire examination and admission to BTC Course-2001 was cancelled. Since the petitioner was not permitted to participate in the Special Examination to be held on 1st April, 2009, he filed Civil Misc. Writ Petition No. 4006 of 2009, which was clubbed with writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others) and other writ petitions and decided under common judgment and order dated 17th September, 2009 referred to above. Under the impugned order dated 18th November, 2009, the Secretary has rejected his claim on the ground that he did not complete his training of BTC Course-2001 nor he was appeared in second examination and therefore, his case is not covered by the Government Order dated 29th December, 2008.
This Court, while entertaining this writ petition under order dated 18th March, 2010 granted time to the learned Standing Counsel to file an affidavit as to why observations made under the judgment and order dated 17th September, 2009 in Civil Misc. Writ Petition No. 3535 of 2009 have not been considered with while deciding the representation of the petitioner. An affidavit has been filed on behalf of respondent no.3 and learned Standing Counsel has only reiterated the sand taken in the connected matters.
5. Civil Misc. Writ Petition No. 5681 of 2010 (Sanjay Kumar Sharma & others versus State of U.P. & ors.):-
This writ petition has been filed by four petitioners. It is stated that they applied and appeared in entrance examination of BTC Course-2001. They were successful and were admitted to BTC Course-2001. They were admitted and after completing 1st year training they appeared in 1st years examination of BTC Course-2001 and have also completed their second year of training at District institute of Education and Training, Hapur, District Ghaziabad. Neither the result of the petitioner of first year examination has been declared nor their second year examination has held. However, on 20th October, 2005 the State Government cancelled the entire admission. Since the petitioners did not receive any information in respect of special examination to be held on 1st February, 2009, they filed Civil Misc. Writ Petition No. 2599 of 2009 (Sanjay Kumar Sharma & Another versus state of U.P. & others) and Civil Misc. Writ Petition No. 2608 of 2009 (Sangeeta & Another versus State of U.P. & others), which have been clubbed with writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others) and other writ petitions and decided under common judgment and order dated 17th September, 2009 referred to above. Under the impugned order dated 18th November, 2009, the Secretary has rejected their claim on the ground that they did not complete their second year training of BTC Course-2001 nor they were appeared in second year examination and therefore, their case not covered by the Government Order dated 29th December, 2008.
While entertaining the present writ petition, under order dated 4th February, 2010, this Court granted time to the learned Standing Counsel to obtain instruction and to file an affidavit stating as to why the observations made by the Court under judgement and order dated 17th September, 2009 in Civil Misc. Writ Petition No. 3535 of 2009 have not been taken into consideration while deciding the representation of the petitioners. No counter affidavit has been filed. The learned Standing Counsel has only reiterated the stand taken in the connected writ petitions.
6. Civil Misc. Writ Petition No. 9311 of 2010 (Mukesh Kumar Arora & others versus State of U.P. & ors.):-
This writ petition has been filed by four petitioners. They applied and appeared in entrance examination of BTC Course-2001. They were successful and were admitted to BTC Course-2001. They were admitted and after completing 1st year training, they appeared in 1st years examination of BTC Course-2001. They have also completed their second year training at District institute of Education and Training, Rampur, Allahabad, Kannauj, and Moradabad respectively. Neither their results of first year examination have been declared nor their second year examinations were held. However, on 20th October, 2005 the State Government cancelled the entire selection. Since the petitioners did not receive any information in respect of special examination to be held on 1st February, 2009, they filed Civil Misc. Writ Petition No. 3214 of 2009 (Mukesh Kumar Arora vs. State of U.P. & others), Civil Misc. Writ Petition No. 4004 of 2009 (Indramani Pandey versus State of U.P. & others), Civil Misc. Writ Petition No. 3215 of 2009 (Anuj Kumar Rathaur vs. State of U.P. & others) and Civil Misc. Writ Petition No. 2925 of 2009 (Vinita Shirohi vs. state of U.P. & others) respectively, which have been clubbed with writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others) and other writ petitions and decided under common judgment and order dated 17th September, 2009 referred to above. Under the impugned order dated 18th November, 2009, the Secretary has rejected their claim on the ground that they did not complete their second year training of BTC Course-2001 nor they were appeared in second year examination and therefore, their case not covered by the Government Order dated 29th December, 2008.
While entertaining the present writ petition, under order dated 22nd February, 2010, this Court granted time to the learned Standing Counsel to obtain instruction and to file an affidavit stating as to why the observations made by the Court under judgement and order dated 17th September, 2009 in Civil Misc. Writ Petition No. 3535 of 2009 have not been taken into consideration while deciding the representation of the petitioners. No counter affidavit has been filed. The learned Standing Counsel has only reiterated the stand taken in the connected writ petitions.
7. Civil Misc. Writ Petition No. 1665 of 2010 (Ramesh Kumar Mani & others versus State of U.P. & ors.):-
This writ petition has been filed by three petitioners. They applied and appeared in entrance examination of BTC Course-2001. It is stated that despite they being higher in merit, they were not considered for admission to BTC Course-2001, and therefore, petitioner nos. 1 and 2 filed Civil Misc. Writ Petition No. 3935 of 2002 (Ramesh Kumar Mani Tripathi and others versus State of U.P. & others), while the petitioner no.3 filed Civil Misc. Writ Petition No. 56393 of 2003 (Man Singh vs. State of U.P. & others). The writ petitions were disposed of vide orders dated 16th December, 2003 and dated 24th February, 2004 respectively and respondent-authorities were directed to take appropriate decision qua grievance of the petitioners. Since the orders of the Writ Court were not complied with, they file contempt petitions and it is only thereafter that they were admitted to BTC Course-2001. Petitioners are stated to have completed their 1st year training and to have appeared in 1st years examination of BTC Course-2001 and to have also completed their second year training at District institute of Education and Training, Gorakhpur and Mathura respectively. Neither their results of first year examination have been declared nor their second year examinations were held. However, on 20th October, 2005, the State Government cancelled the entire admission. Since the petitioners did not receive any information in respect of special examination to be held on 1st February, 2009, they filed Civil Misc. Writ Petition No. 2612 of 2009 (Ramesh Kumar Mani Tripathi & others vs. State of U.P. & others), which has been clubbed with writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia versus State of U.P. & others) and other writ petitions and decided under common judgment and order dated 17th September, 2009 referred to above. Under the impugned order dated 18th November, 2009, the Secretary has rejected their claim on the ground that they did not complete their second year training of BTC Course-2001 nor they were appeared in second year examination and therefore, their case not covered by the Government Order dated 29th December, 2008.
While entertaining the present writ petition, under order dated 18th January, 2010, this Court granted time to the learned Standing Counsel to obtain instruction and to file an affidavit stating as to why the observations made by the Court under judgement and order dated 17th September, 2009 in Civil Misc. Writ Petition No. 3535 of 2009 have not been taken into consideration while deciding the representation of the petitioners. No counter affidavit has been filed. The learned Standing Counsel has only reiterated the stand taken in the connected writ petitions.
8. Civil Misc. Writ Petition No. 19559 of 2010 (Sarla Pandey & Another versus State of U.P. & ors.):-
This writ petition has been filed by two petitioners. They applied and appeared in entrance examination of BTC Course-2001. It is stated that they were empanelled at serial nos. 1 and 2 of the wait-list. Since some candidates from main list did not join the training, therefore, petitioners were admitted to BTC Course-2001 on 15th September, 2003. However, all of sudden, their training was stopped, they filed Civil Misc. Writ Petition No. 47433 of 2003 (Sarla Devi versus State of U.P. & others). The writ petition was decided under order dated 1st December, 2003 requiring the respondent-authorities to admit the petitioners, if any, seat falls vacant to be filled by general category candidate in accordance with merit. The Secretary, Pariksha Niyamak Pradhikari, U.P. Allahabad accordingly considered the claim of the petitioners and directed their admission to BTC Course-2001 under order dated 4th September, 2004 with a condition that she will complete her training along with candidates of BTC Course-2004, but her seniority would be be counted along with the candidates of BTC Course-2001.
Despite the aforesaid, petitioners were not actually admitted and therefore, they filed contempt petition no. 3424 of 2004. It was only on 9th February, 2005 that the respondent-Principal, District Institute of Education and Training asked the petitioners to appear for admission along with original testimonials and then they were admitted.
An affidavit has been filed on behalf of the respondent no.1 in the present writ petition justifying the decision taken for granting the admission to the petitioner. However, on behalf of the other State-respondents, no counter affidavit has been filed. Special Examination of the candidates admitted to BTC Course-2001 was conducted on 26th September, 2009. However, petitioners were not permitted to appear in fist year examination, which were held on 12th and 13th April, 2010.
The Court may now record the facts, which flow from the original records of the State-Government, which have been examined by the Court.
The note-sheet dated 24th January, 2005 singed by the Special Secretary (at page 48) records that second year examination of BTC Course-2001 has been completed and in near future, result is also to be declared. After declaration of result of second year examination, candidates would become entitled for appointment as Assistant Teachers in Parishidiya Vidyalayas. Therefore, opinion of the legal department may be obtained in the matter as enquiry into the conduct of the entrance examination of BTC Course 2001 was still in progress by the Vigilance Department. On 17th October, 2005, the Cabinet of Ministers took a decision to cancel the entire examination (reference note-sheet at page 66) and required the Director, State Council of Education Research and Training, U.P, at Lucknow to submit a proposal for Cabinet's approval for the Entrance Examination in respect of BTC Course-2001 and Entrance Examination for BTC Course-2005 to be held together. Accordingly, Government Order dated 20th October, 2005 was issued.
This Government Order was upheld under the judgement and order of the learned Single dated 24th April, 2006 passed in Civil Misc. Writ Petition No. 69091 of 2005 (Vinod Kumar Yadav & others versus State of U.P. & others), which was affirmed by the Division Bench in its judgment dated 31st August, 2007.
The Special Secretary put up a note dated 15th May, 2006 recording that in view of the order of the Hon'ble Single Judge dated 24th April, 2006, examination for BTC Course-2001 be conducted by the State Government only from amongst the applicants, who had undertaken the examination on the last occasion. According to Secretary, the sentence 'who had undertaken the examination on the last occasion', was capable on two interpretations, (a) only 5,600 applicants/candidates, who had been admitted and had completed two years training and have further appeared in the second year examination of the training course alone were to appear, (b) all the applicants, who had appeared in the Entrance Examination of BTC Course-2001, were to undertake the fresh entrance examination. He therefore, suggested clarification from the legal department may be obtained. Accordingly, the records were placed before the Special Secretary and Additional Legal Rememberancer, Law and Justice Department, U.P. Government at Lucknow, who submitted his opinion as follows:
"esjs vfHker esa ek0 mPp U;k;ky; ds fu.kZ; esa mfYyf[kr 'kCn ¼ykLV vkdstu½ dk rkRi;Z ch0Vh0lh0 2001 dh vk;ksftr ijh{kk esa cSBs gq;s leLr vH;fFkZ;ksa ls gh gS ijUrq fQj Hkh mfpr gksxk fd eq[; Lfkk;h vf/koDrk ds ek/;e ls izkFkZuk i= nsdj ek0 mPp U;k;ky; ls fLFkfr dks Li"V djk fy;k tk; fd fu.kZ; ds var esa mfYyf[kr funsZ'k ls mudk D;k rkRi;Z gSA"
A note was put up by the Joint Secretary on 6th July, 2006, stating therein that fresh entrance examination of BTC Course-2001 is to be held from amongst 5,600 candidates, who have been admitted to the BTC Course-2001 and that legal opinion be obtained from the legal department. This note was signed by the Secretary, Basic Education on 8th July, 2006. (page 101) On the aforesaid note, the Secretary, Basic Education, U.P. Government, on 23rd June, 2006 recorded "d`i;k okrkZ fnukad 26 twu] 2006"
Thereafter the Special Secretary, Basic Education, U.P. Government again made a note on 16th June, 2006 stating therein that re-examination should be held from amongst all the applicants who had appeared in entrance examination of BTC Course-2001, which is in accordance with the intention of the order of the Hon'ble High Court.
In the order sheet at page 99, note of Special Secretary records that Varta did take place and that "Ka" is in accordance with the intention of the order of the Hon'ble High Court. It may be recorded that 'Ka' was marked against the note of the Special Secretary, Basic Education that entrance examination to be held from amongst all the applicants, who had appeared in the Entrance Examination held for BTC Course-2001.
Despite the aforesaid, another note was put up by the Joint Secretary on 6th July, 2006 stating therein that re-examination may be held from only 5600 candidates, who had been admitted to BTC Course-2001 and for the purpose minimum pass marks may be fixed and fresh legal opinion be obtained.
Accordingly, the file was put up before the Legal Department. The Special Secretary/Additional Legal Rememberancer, Law and Justice Department, U.P. Government Lucknow made a note that legal department has already submitted its opinion and if required, a clarification application may be filed before the High Court itself.
In the meantime, special appeals were filed against the judgment and order of the Hon'ble Single Judge dated 24th April, 2006 and again a note was put up on 18th January, 2007 for legal opinion from the legal department being obtained. A decision was taken on 25th January, 2007 to request the Chief Standing Counsel, Allahabad to get the special appeal decided at the earliest. At pages 126 and 127 of the Note-sheet, it is recorded that the matter has to be placed before the Cabinet of Ministers, inasmuch as earlier decision was taken by the Cabinet of Ministers. At page-129, it is recorded that the disciplinary enquiry has been initiated against the Director, SCERT as well as against the Registrar, Departmental Examination and a first information report is being lodged against the private computer firms. On 21st June, 2007 at page 130, another note was put up with reference to various letters of the Members of Lok Sabha as well as other ministers of different departments recording that against the judgment and order of the Hon'ble Single Judge, special appeal has been heard and judgment has been reserved on 2nd March, 2007. Further a decision is to be taken qua declaration of the result of the second year examination of the candidates already admitted to BTC Course-2001, therefore, opinion be obtained from the Advocate General of the State of Uttar Pradesh.
A detail note was submitted by the Principal Secretary/Additional Legal Rememberancer dated 25th June, 2007 categorically recording that in terms of the order of the Single Judge dated 24th April, 2006, it is apparently clear that fresh entrance examination is to be held from amongst all the applicants, who had appeared in the entrance examination, held earlier for admission to BTC Course-2001. Therefore, no purpose is to be achieved, by declaring the result of second year examination of the candidates admitted to BTC Course-2001 under the cancelled entrance examination. The learned Advocate General on 29th June, 2007 on the aforesaid opinion of the Special Secretary/Additional Legal Rememberancer made following endorsement:
"I have gone through the record of the case and have also perused the opinion expressed by the Principal Secretary, Law. I do agree with the same."
29.06.2007 (Jyotindra Mihsra) Mahadhivakta Uttar Pradesh Sashan"
The note was duly countersigned by the Principal Secretary, Law.
Note sheet at page 136 records that request was made to the Director SCERT, Lucknow to get the appeal decided at the earliest. The appeal was finally decided on 31st August, 2007 and the judgment and order of the Single Judge was affirmed.
A note was put up on 5th November, 2007 qua opinion being obtained from the legal department, so that the order of the Court may be complied within time. The Under Secretary again made a note on 8th November, 2007 suggesting that examination is to be held from amongst candidates who had completed two years training and had appeared in final year examination and suggested that fresh opinion from the legal department be obtained. The Legal Department in reply required the issues to be clarified on which opinion is required.
It is this stage that the Under Secretary made a note dated 11th December, 2007suggesting that legal opinion was required on following issues:
"1- D;k ch0Vh0lh0 izos'k ijh{kk 2001 esa lfEefyr lHkh vH;fFkZ;ksa dks iqu% izos'k ijh{kk yh tkuh gS\ vFkok 2- izos'k ijh{kk esa dsoy fof/klaxr vH;fFkZ;ksa dks gh lfEefyr fd;k tk;sxk] D;ksfd ch0Vh0lh0 izos'k ijh{kk 2001 esa ijh{kk iwoZ vusd xM+cfM+;k gqbZ Fkh] ftudk mYys[k 'kklukns'k fnukad 20-10-2005 esa fd;k x;k gSA vFkok 3- ek0 mPp U;k;ky; ls mDr Hkze dh fLFkfr dks D;k Li"V djk;k tkuk mfpr gksxk\ vFkok 4- iz'uxr izdj.k esa loksZPp U;k;ky; esa fof/k lEer lek/kku gsrq ,l0,y0ih0 nk;j fd;s tkus dk fodYi lEHko gksxk\ D;ksafd ch0Vh0lh0 izos'k ijh{kk 2001 esa lfEefyr vH;fFkZ;ksa ds vfHkys[k iw.kZ:is.k izkIr gksuk dfBu gSA"
Note-sheet dated 20th July, 2007 records that opinion from the Advocate General be obtained on the four issues However, the Secretary, Basic Education recommended that a clarification application be filed before the Hon'ble Single Judge. On 7th February, 2008, Under Secretary made a note that for making the clarification application and for submissions on behalf of State Government and Department, Sri K.S. Kushwaha, Standing Counsel be engaged, which was dully approved by the various Secretaries. Accordingly, a clarification application was moved which was rejected by the Court as already noticed above. It is after the rejection of the clarification application, that the Special Counsel engaged for making clarification application, vide his letter dated 5th May, 2008, expressed his opinion as follows:
"..................................................
B.T.C. 2005 examination has not been taken place and in between, the State Government vide Government order dated 20.3.2006 decided to proceed for selection of candidates for B.T.C. on merit basis instead of entrance examination.
In view of the facts mentioned above the State Government, in my opinion is competent to hold special entrance examination amongst the candidates who have completed their two years training and simultaneously the State Government may also proceed for B.T.C. Training of remaining years through merit system after getting vacation of the interim order passed by this Hon'ble Court in writ petition no. 19790 of 2006 Puja Gupta vs. State of U.P. & others."
However, on the said opinion of the Special Counsel, again a note was put on 10th May, 2008 that opinion be obtained from the legal department on following three issues:
"1- D;k mDr ijh{kk mu vH;fFkZ;ksa ds e/; djk;h tkuh gS tks ch0Vh0lh0 izos'k ijh{kk 2001 esa nks o"kZ dk izf'k{k.k izkIr dj pqds gSa\ 2- ch0Vh0lh0 izos'k ijh{kk 2001 esa lfEefyr os vH;FkhZ tks lQy ugha gq, Fks ds laca/k esa dksbZ dk;Zokgh fd;k tkuk vo'ks"k rks ugh gS\ 3- mDr ijh{kk ek0 eaf=ifj"kn ds vuqeksnuksijkUr fujLr dh x;h Fkh D;k vc iqu% izdj.k eaf=ifj"kn ds le{k izLrqr fd;k tkuk gksxk vFkok ek0 eq[;ea=h th ds vuqeksnuksijkUr vxzsrj dk;Zokgh fd;k tkuk mfpr gksxkA "
The Special Secretary/Additional Legal Rememberancer, Law and Justice Department, U.P. Government on 22nd May, 2008 recorded that against the order of the Hon'lbe Single Judge dated 24th April, 2006, Special Appeal no. 553 of 2006 was filed, which has been dismissed on 31str August, 2007. The Division Bench has upheld the decision of the State Government and therefore, the State Government may take appropriate action in accordance with the judgment of the Division Bench A clarification application was filed before the Hon'ble High Court and the Hon'ble High observed that clarification application, if any, should be filed in the special appeal. It was therefore, opined that clarification application should be presented in the special appeal.
On 23rd May, 2008, a note was put up that appropriate action be taken by the Director, S.C.E.R.T. in terms of the opinion of the legal department dated 18th February, 2008.
Thereafter with reference to the letter of the Special Counsel dated 5th May, 2008 (quoted above), a fresh note was put up on 10th June, 2008 that fresh examination for BTC Course-2001 be held from amongst candidates, who have completed two years training of BTC Course-2001 and for the purpose approval from the Cabinet of Ministers may be obtained. For read reference relevant portion of the is being quoted herein below (page 184/185):
" 'kklukns'k fnukad 20-03-2006 }kjk ch0Vh0lh0 p;u 2004 esa p;u dk vk/kkj izos'k ijh{kk dks lekIr djrs gq, gkbZLdwy] b.VjehfM,V ,oa Lukrd ijh{kk ds izkIrkad izfr'kr ds ;ksx ds vk/kkj ij fd;s tkus dk fu.kZ; fy;k x;k FkkA 'kklukns'k fnukad 20-03-2006 ds fo:) ;ksftr fjV ;kfpdk la0 19790@2006 iwtk xqIrk cuke m0iz0 jkT; o vU; esa ek0 mPp U;k;ky; ds LFkxu vkns'k fnukad 12-04-206 ds dkj.k vkxkeh l=ksaa gsrq ch0Vh0lh0 dh p;u izfØ;k izkjEHk ugh dh tk ldhA lkFk gh 'kklukns'k fnukad 20-03-2006 ds vuqlkj p;u dk vk/kkj 'kSf{kd izkIrkadkssa ds ;ksx gksus ds dkj.k Hkfo"; esa fdlh Hkh izdkj dh fyf[kr ijh{kk dh lEHkkouk ugha jg x;h gSA bl laca/k esa dk;kZy; dh fouez izLrqfr gS fd ;fn xr i`"B&168&179 ds de esa ek0 [k.MihB ds fu.kZ; ,oa fnukad 31-8-2007@funs'kd] ,l0lh0bZ0vkj0Vh0 ds izLrko fnukad 9-5-2008@U;k; foHkkx ds ijke'kZ xr i`"B 179 ds vuqlkj ch0Vh0lh0 izos'k ijh{kk ds vH;FkhZ ftudk nks o"kZ dk ch0Vh0lh0 izf'k{k.k iw.kZ gks pqdk gS dh gh ijh{kk yh tkuh gS rks bl laca/k esa ek0 eaf= ifj"kn dk vuqeksnu izkIr fd;k tkuk mfpr izrhr gksrk gSA D;ksafd mDr ijh{kk ek0 eaf=ifj"kn ds vuqeksnuksijkUr 'kklukns'k fnukad 20-10-2005 }kjk vikLr dh x;h FkhA ¼'kklukns'k fnukad 20-10-2005 ds izLrj&4 o 5 esa ;Fkko';d la'kks/ku Hkh fd;k tkuk gksxk½A egksn; ;fn lger gks rks fo'ks"k lfpo@lfpo egksn; dk vuqeksnu@vkns'k izkIr djuk pkgsaaA"
Thereafter the Principal Secretary, Law, Justice and Legal Rememberancer, U.P. Government made a note on 25th August, 2008 that in view of the Division Bench Judgement of the Court dated 31st August, 2007, the selected candidates be treated as genuine and entrance examination be held for them only. For ready reference relevant portion is being quoted herein below:
"mDr fu.kZ; ls {kqC/k gksdj ;kphx.k us fo'ks"k vihy nk;j dh tks 31&08&2007 dks fuf.kZr gq;hA mDr fu.kZ; esa mi;qZDr p;fur vH;fFkZ;ksa dks Genuine Candidate ekurs gq;s ;g vkns'k fn;s x;s fd ;fn os izLrkfor izos'k ijh{kk esa lQy gksrs gSaa rks mUgsa izf'k{k.k ls eqDr j[kk tk;sxkA mi;qZDr lHkh vH;FkhZ 'kSf{kd o vk;q ls lEcfU/kr vgZrk dks iwjk djrs gSaA vr% mudh iqu% izos'k ijh{kk fy;s tkus esa dksbZ fof/kd ck/kk ugh gSA""""
Thereafter a note was put for consideration by the Cabinet of Ministers and at that stage the Principal Secretary, Basic Education added that candidates who have been admitted to BTC Course-2001 and have completed two years training and have appeared in the second year examination alone be permitted to appear in the special examination. Accordingly, a note was prepared for consideration of the matter by circulation by the Cabinet of Ministers, which was approved resulting in the issuance of the Government Order dated 29th December, 2008.
SUBMISSIONS:
On behalf of the petitioners it is contended that the impugned order passed by the State Government dated 18th November, 2009 is patently arbitrary and is based on complete misreading of the Government Order dated 20th October, 2005 as well as on incorrect reading of the judgment of Single Judge dated 24th April, 2006 as well as judgment passed by the Division Bench dated 31st August, 2007.
Learned counsel for the petitioners clarifies that after orders were passed by this Court for consideration of their claim by the authority concerned, it was found that the petitioners were more meritorious and were entitled to admission to BTC Course-2001 within the category to which they belong. admissions so granted could not have been brought to a nought under the Government Order dated 29th December, 2008, whereby right to appear in the special examination has been confined in favour of the candidates who were selected, had completed their training and had appeared in the 2nd years of examination, prior to the issuance of the Government Order dated 20th October, 2005. The State Government cannot be permitted to leave the petitioners in lurch on misreading the judgment and order of Single Judge dated 24th April, 2006 and the Division Bench judgment dated 31st August, 2007. It is contended that the Government Order dated 29th December, 2008 is contemptuous in nature being in defiance to the orders passed on earlier writ petitions, as detailed above, is a waste paper, even otherwise, discriminatory. He submits that the State has to complete their training and accordingly permit them to appear in the final examination of BTC Training Course-2001 and thereafter to offer appointment to the petitioners as assistant teachers in Parishidiya Vidyalayas.
Petitioners in Writ Petition No. 19559 of 2010 (Sarla Pandey & Anr. Versus State of U.P. &Ors.) point out that they were granted admission to B.T.C. Course-2001 and were restrained orally from continuing with the Course leading to the filing of the writ petition no. 47433 of 2003. Under the order of the Court dated 1st December, 2003 the matter was examined by the education authorities and ultimately vide order dated 4th September, 2004, they were held to be entitled to admission to BTC Course-2001. Even thereafter they were not admitted resulting in filing of Contempt Petition No. 3424 of 2004 and only when notices were issued on the contempt petition that the respondents admitted the petitioners on 1st September, 2005 and thereafter their training has been stopped because of the Government Order dated 20th October, 2005. Petitioners have prayed that they may be permitted to complete their training of BTC Course-2001.
Sri R.N. Singh, learned Senior Advocate assisted by Sri K.S. Kushwaha, learned Standing Counsel for the State-respondents submits that the Hon'ble High Court in its order dated 17th September, 2009 passed in writ petition no. 3535 of 2009 (Indoo Kumari Chaurasia vs. State of U.P. & others) had noticed that the candidates who had been admitted to BTC Course -2001, formed a Class and thereafter it is suggested that in respect of such category of candidates who were admitted to BTC Course-2001 on the basis of entrance examination and had completed their two years training course, the State could take a decision to hold a separate examination in January, 2009 and all those candidates, who were successful in the examination of January, 2009, have accordingly been offered appointment as Assistant Teachers. He submits that under order of the Writ Court dated 24th April, 2006 and that passed by the Division Bench dated 31st August, 2007, upholding the Government Order dated 20th October, 2005, there was a direction to hold examination from amongst candidates, who had undertaken the examination on last occasion, which has been interpreted by the State Government to mean the candidates, who after admission to BTC course-2001 had completed their two years training and had appeared in the final examination. Such decision of the State Government cannot be said to be illegal and therefore, there is no violation of the judgement and orders of the High Court. He further submits that none of the candidates, who had not been admitted to BTC Course-2001, have come-forward to challenge the Government Order dated 29th December, 2008 and that the legality of the Government Order dated 29th December, 2008 is not under challenge. Therefore, this Court may accept the Government Order to be legal and valid and since the case of the petitioners is not covered by the Government Order dated 29th December, 2008, no relief as prayed be granted to them. He submits that the order of the Secretary, Basic Education, U.P. Government Lucknow dated 18th November, 2009 impugned in the present writ petition is strictly in accordance with law.
He lastly submits that there has been no deliberate disobedience of the judgment of the Writ Court dated 24th April, 2006, and the Judgement of the Division Bench dated 31st August, 2007. In case case this Court finds that there has been misreading of the said judgements of this Court, it may require the State to hold an appropriate examination for other candidates also, who were admitted to BTC Course-2001 under the order of the High Court. Such order, if issued, shall be complied with in letter and spirit. He submits that the legality of the Government Order dated 29th December, 2008 need not be gone into by this Court, as it is not under challenge.
On these rival contentions raised on behalf of the parties that this Court has to examine the controversy raised in these writ petitions.
FINDINGS:
The controversy with regard to the admission to Special B.T.C. Course-2001 could not be resolved even after 09 years because the State Government has decided to issue Government Orders after Government Orders for confusing the issues in garb of clarifying the position and by altering its stand from time to time.
Entrance Test for Special B.T.C. Course-2001 took place in April, 2002. The results were declared on 03rd July, 2003. It is admitted to the State respondents that the results were fabricated and that the admission granted were based on other considerations than merit. Therefore, the State Government ultimately on 20.10.2005 cancelled the entire entrance test.
In between certain candidates, who were granted admission on the basis of illegal entrance examination were permitted to complete their first and second year of training and had also appeared in the second year examination of BTC Training Course-2001. It is in respect of such candidates that the State Government came out with exceptional clause (Clauses 4 and 5 of the Government Order dated 20th October, 2005).
The exception clause i. e. para 4 of the Government Order dated 20th October, 2005 provides that irrespective of the fact as to whether the candidate was admitted illegally or by superseding the other meritorious candidates, if he has completed two years of training because of such illegal admission, he shall be permitted to appear in the fresh entrance test to be conducted along with entrance test for B.T.C. Course-2005 and if in such entrance test the illegally admitted candidate comes within the zone of being admitted to B.T.C. Course-2001, then he will not be required to undergo 2 years of the B.T.C. Training again and such candidate with the permission of the NCTE would be offered appointment in Parishadiya Vidhyalayas.
Clause (5) records that entrance examination for admission to BTC Course-2001 be held along with B.T.C. Entrance Examination-2005 undertaken with the approval of the State Government and a proposal in that regard be submitted to the State Government.
What follows from the Government Order dated 20.10.2005 is as follows:
(a) There shall be a fresh entrance test for Special B.T.C.-2001 along with B.T.C. Entrance Test of 2005 from amongst the students who participated in the earlier entrance test.
(b) Candidates, who are successful in the fresh entrance test and have already undergone training of two years under the admission granted after declaration of result in April, 2002, shall not be required to undergo the training of two years again.
(c) They would be offered appointment after obtaining permission from the NCTE.
(d) A proposal be submitted to the State Government for holding a common entrance test for Special B.T.C. Course-2001 along with B.T.C. Entrance Test of 2005.
This Court may record that the Government Order dated 20th October, 2005 permitted participation of all the earlier applicants in the fresh entrance test for B.T.C.-2001 irrespective of the fact whether they had been admitted to B.T.C. Course and had completed the training or not. According to the Court, the only benefit granted to the candidates, who had completed the B.T.C. Training of two years, despite the cancellation of the entire entrance test held in 2002, was that if they are successful in the fresh entrance test for admission to Special B.T.C. Course-2001 to be held under Government Order dated 20.10.2005, then they will not be required to undergo the training of two years again. This benefit was not provided to other applicants, who may be admitted after the fresh entrance test to be held under Government Order dated 20.10.2005.
This Government Order was subjected to challenge by means of large number of writ petitions, which were decided on 24.04.2006. The order of the Hon'ble Single Judge provided that examination for B.T.C. 2001 shall be conducted only from amongst the candidates who have undertaken examination on the last occasion. Meaning there by that the zone of consideration for Special B.T.C. Entrance Test 2001 under Government Order dated 20.10.2005 was confined to the students who had undergone the said entrance test held in April, 2002 only.
Certain admitted candidates not being satisfied with the order of the Hon'ble Single Judge filed Special Appeal No. 553 of 2006, which was decided on 31.08.2007 and the Court specifically held that the decision taken by the State Government under Government Order dated 20.10.2005 was a correct decision. For protecting the interest of genuine persons, who had undergone the training, it was observed that if they are successful in the entrance test to be held under Government Order dated 20.10.2005, then there would be no reason for them to undertake the training of two years afresh. For ready reference the order of the Division Bench, relevant for our purposes, is quoted herein below:
"Now coming to the last aspect of the matter whether equity and justice require that the candidates having completed two years of training ought not to have visited penal consequences and, therefore, the State Government's decision should have been set aside. We find that it is true that due to ongoing enquiry and time taken therein, in the meantime the candidates who were selected and admitted have devoted their two years valuable time for the purpose of undergoing the BTC training and we also feel that it would be hard on the part of such candidate who are ultimately excluded having spent their two years valuable time undergoing such training but in the facts and circumstances of the particular case, we find that the State Government has taken a correct decision and also has taken care of training undergone by the genuine persons by providing in the order impugned in the writ petition that after having fresh entrance test, the candidates who are ultimately found successful, if had already undergone training, would not be required to undergo such training afresh but the earlier training shall be treated to be a valid training and shall entitle those candidates for appointment in accordance with the rules on the basis of the said training. This has taken care of the genuine candidates who have already undergone BTC training but those who fail to get selection cannot claim any benefit since the beneficiaries of wrongful means or wrongful selection are liable to loose the benefit acquired on the basis of such tainted selection and no equity would lie in their favour."
The State of U.P. made a modification application before the Hon'ble Single Judge in the writ petition, referred to above, which was rejected after observing that the order has merged in the orders of the Division Bench.
Instead of carrying out the directions contained in the order of the writ Court as well as of the Division Bench, which had specifically affirmed the Government Order dated 20.10.2005, the State Government became wiser and came out with a fresh Government Order on 29.12.2008 to the effect that the candidates, who had completed two years training in pursuance to the admission for B.T.C. Course-2001 held in April, 2002, and have appeared in the 2nd year examination, alone would appear in a fresh examination, and if they achieve 33% marks in such examination, they would be offered appointment as assistant teachers in Parishadiya Vidhyalayas. This Government Order has been made the sheet anchor for rejecting the representation of the petitioner, who had appeared in the entrance test held in the year 2002 and claims to be a victim of unfair practice adopted by the State. The Secretary, Basic Education, under the impugned order has recorded that the Government Order dated 29.12.2008 confines the special examination to be held from the candidates, who had completed two years training in pursuance of the selection held in the year 2002, and had appeared in the final year examination. It has been recorded that since the petitioner had not undergone the training of two years/not appeared in the 2nd year of examination, in pursuance to the earlier admissions/selections, they cannot be permitted to appear in the special examination to be held under the Government Order dated 29.12.2008. The order of the Secretary is under challenge in this petition.
I am of the opinion that the order of the Secretary is based on complete non application of mind to the terms and conditions of the Government Order dated 20th October, 2005, which has been upheld by the Hon'ble Single Judge as well as by the Division Bench of this Court.
As already noticed above, a fresh entrance test from amongst all the candidates who had undertaken the earlier examination held in April, 2002 was necessary. Only relaxation from training was granted to such candidates who succeed in the fresh entrance examination to be held under Government Order dated 20.10.2005 and who had completed two years training. The Division Bench has specifically held that if such candidates are successful in subsequent examination to be held under Government Order dated 20.10.2005, it will be too harsh to ask such candidates to undergo the training again for the same period of two years.
The Government Order dated 29.12.2008 has been made a tool by the State Government to perpetuate the illegality committed in the matter of admission to BTC Course-2001 by holding an examination of such illegal admitted candidates only and on their achieving of 33% marks in the examination to be appointed as assistant teachers. The Government Order dated 29.12.2008 over reaches the judgment of the Single Judge as affirmed by the Division Bench referred to above and is an attempt to perpetuate illegalities committed, while granting admissions on the basis of entrance test held in the year 2002, which was cancelled for large scale malpractices.
In response to the order passed by this Court dated 29th March, 2010, the Secretary, Basic Education filed an affidavit and in paras 10, 11 & 12 it has been stated as follows:-
"10. That as per paragraph-5 of the government order dated 20.10.2005, only those candidates, who had completed Two Years B.T.C. Training, 2001 were made eligible for appearing in re-examination with special privileges provided in the said government order. The Division Bench of this Hon'ble Court had also taken note of this facts in its order dated 31.8.2007.
11.That it is necessary to submit here that BTC 2001 examination was cancelled in the year 2005 as mentioned above. BTC 2002 and BTC 2003 could not be conducted. By means of government order dated 20.2.2004, process for conducting BTC, 2004 was initiated. Initially the mode was selection was fixed through entrance examination, however, by means of government order dated 20.3.2006, the mode of selection for BTC, 2004 was changed and instead of entrance examination, decision was taken for initiation of process of selection on merit basis. The validity of the government order dated 20.3.2006 was challenged before this Hon'ble Court and the Hon'ble Court stayed the finalization of selection of BTC 2004. Due to interim order, BTC 2004 was not finalized up to 2008, however, after vacation of interim order by this Hon'ble Court, the process of selection of BTC 2004 was finalized and two year's training is in process. It is further to submit here that since 2001 BTC regular training has not been initiated till date except BTC 2004.
12.That it is submitted that the State Government had provided the opportunity for appearing in the re-examination to the trainees of the Basic Teachers Certificates, 2001 who had completed two years training and had appeared in the final examination."
And thereafter in para 16 of the affidavit it is stated as follows:-
"16. That it is further submitted that the Division Bench of this Hon'ble Court was of the view that in case re-examination of all the applicants of B.T.C. Training Course, 2001 is conducted, then again the chances of irregularities cannot be denied such as:
(a) Such candidates may re-examine in this examination who had not annexed the bank draft with the application form.
(b) Such candidates may re-appear whose application forms were incomplete or who were not eligible even to apply for BTC entrance examination, 2001.
(c) Such candidate who even had not applied for B.T.C. entrance examination 2001 may appear in this special examination."
In para 19 it has been stated that the relief granted by Hon'ble High Court is confined to the candidates who have completed their two years B.T.C. Training Course, 2001 and had appeared in the final year examination. Then in para 24 of the affidavit, it is stated that the issuance of the Government Order dated 29th December, 2008 is in good faith. However, unconditional apology is being tendered for the inconvenience caused.
I am of the considered opinion that the stand taken by the Secretary in his affidavit specifically para-19 of the counter affidavit, is in teeth of the judgment of the Division Bench in Special Appeal No.553 of 2006 decided on 31.8.2007, wherein the Court specifically noticed that the State Government had to hold a fresh entrance examination and it is only those applicants, who succeed in the fresh entrance examination would be entitled to admission to the said course with a further right in favour of such selected candidates, who had completed B.T.C. Training of two years after admission under the earlier selection, to be exempted from undergoing fresh training of two years. Meaning thereby holding of entrance examination for all categories of candidates who had appear in 2001 Entrance examination earlier was a must. The candidates who do not succeed in the fresh entrance examination, were not to be given any benefits of the two years training undergone because illegal admission granted earlier as is apparent from the following part of the Division Bench Judgement dated 31st August, 2007:
"but those who fail to get selection cannot claim any benefit since the beneficiaries of wrongful means or wrongful selection are liable to loose the benefit acquired on the basis of such tainted selection and no equity would lie in their favour."
The exemption from training to the candidates was, therefore, dependent upon qualifying the fresh entrance examination to be conducted under the Government order dated 20.10.2005 and not otherwise.
The Court may observe that the stand taken by the Secretary in his affidavit as well as by his counsel is not only in the teeth of the judgment of the Division Bench but is also an attempt to confer illegal benefit upon the candidates who were illegally admitted to the B.T.C. 2001 course on the basis of earlier entrance examination, which was declared to be a tainted selection by the High Court.
It is needless to say that a candidates cannot be said to have successfully completed his B.T.C. two years course unless he passes the final examination after completing his training.
The Division Bench judgment contemplates two sets of examination; (a) fresh entrance examination, wherein all applicants of the 2001 examination were eligible to appear, provided they appeared in the earlier entrance examination of 2002. (b) the fresh selected candidates, after undergoing the training and the selected candidates, who had already undergone the said training of two years on the basis of admission granted under examinations of 2002 stood exempted from such training were to appear in final B.T.C. Examination to be held after completion of the B.T.C. Course.
To a reasonable man, the distinction between the entrance examination and the final/end term examination is too clear and too simple, (a) entrance examination is conducted for selecting applicants on the basis of relative merit for admission to a particular course, (b) final/end term examinations are held, when a candidate after admission completes the necessary years of teaching and has to appear in the final/end term examination and on being successful he said to have completed the course.
This Court has no room to doubt that the Secretary, Basic Education, U.P. Government at Lucknow and the persons tendering the opinion are reasonable men.
This Court may record that under the judgment of the Writ Court dated 24th April, 2006 and the Division Bench Judgement dated 31st August, 2007, what were required to be done by the State Government was to hold an entrance examination, where-under the candidates covered by the Government Order dated 29th December, 2008 were also required to compete with others in the matter of admission to BTC Course-2001. As already noticed above, the criteria for determination of merit for admission to the BTC Course-2001 were the 3 indices, noticed herein above.
The Government Order dated 29th December, 2008 infact has the affect of diluting the judgment of the Single Judge dated 24th April, 2006 and the Judgement of the Division Bench dated 31st August, 2007, which while upholding the Government Order dated 20th October, 2005, made it mandatory for the State Government to hold a fresh entrance examination from amongst applicants, who had undertaken the same entrance examination for admission to BTC Course-2001 earlier.
By stretch of no imagination, the judgement of the Single Judge dated 24th April, 2006, as affirmed by the Division Bench vide judgment dated 31st August, 2007, insofar as it clarified that the applicants, who had appeared in the last examination alone would be entitled to appear in the fresh entrance examination to be held, under Government Order dated 20th October, 2005 could be read to suggest that the candidates who had been admitted and had completed their two years training course and had further appeared in the final examination of BTC Course-2001 were alone entitled to appear in a special examination before being appointed as assistant teachers.
This Court may record that once the Government Order dated 20th October, 2005 cancelling the entire selection has been upheld, any admission granted in pursuance thereof would fall automatically. Such illegally admitted candidates cannot be conferred any benefit because of their having completed two years BTC course and having appeared in final examination, without undergoing the open market competition for admission as provided under the Government Order dated 20th October, 2005 as noticed herein above.
This Court with all humility at its command may record that action/decision of the State Government under the Government Order dated 29th December, 2008 is contemptuous in nature. It was never the intention of the State Government under the Government Order dated 20th October, 2005 or under the judgment of the Single Judge dated 24th April, 2006 and of the Division Bench judgment dated 31st August, 2007 that a special examination is to be held from amongst the candidates, who had already been admitted, had completed their two years training of BTC Course-2001 and have undertaken the final year examination, as has been provided under Government Order dated 29th December, 2008.
In All Bengal Excise Licensees Association vs. Raghbendra Singh & others, reported in AIR 2007 SC 1386, in paragraphs-26 and 27 it has held as follows:
"26..............It is settled law that a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof by pleading misunderstanding and thereafter retain the said advantage gained in breach of the order of the Court. .......
27. ....................As already observed by the Full Bench of the Madras High Court in AIR 1975 Madras 270, that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court's orders. ..........."
In Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. & Anr., reported in AIR 1996 SC 2005, the Hon'ble Supreme Court has held as follows:
"The principal that a contemmnor ought not to be permitted to enjoy and/ or keep the fruits of his contempt is well settled."
In Clarke vs. Chadbum reported in (1985) 1 ALL. E.R. 211, Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot seek what it should be said that although they ware labile to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if act is done, it is not undone merely by pointing out that it was done in breach in law......................................what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
In view of the aforesaid settled legal position, and since this Court has come to the conclusion that the Government Order dated 29th December, 2008 is contemptuous in nature, as it has been issued in defiance of Judgements of the High Court dated 24th April, 2006 and dated 31st August, 2007, same is held to be a nullity and in operative in the eyes of law. Consequently, the impugned order of the Secretary dated 18th November, 2009 based on the said Government Order dated 29th December, 2008 holding the petitioners as ineligible to appear in the special examination would fall automatically.
However, this Court will not issue any mandamus asking the State to hold any separate special examination qua the petitioners for completing their BTC training course like the way, it has been done qua the candidates, who have been given benefit under the Government Order dated 29th December, 2008, inasmuch as before any such examination qua the petitioners can take place, they are also under legal obligation to undertake the entrance test as was directed under the Government Order dated 20th October, 2005, which has since been affirmed and approved by the judgment of the Single Judge dated 24th April, 2006 as well as by the Division Bench dated 31st August, 2007.
There is another aspect of the matter, namely, can the State in garb of the Government Order dated 29th December, 2008 deny a right to the petitioners to complete their BTC training Course-2001, even after they had been admitted to said course by the education authorities themselves after the matter was re-examined under the directions of the High Court on an earlier writ petitions filed by the petitioners. The answer to the question has to be in negative. Persons like the petitioners, who on examination of their case, under the order of the High Court, had been admitted by the authorities cannot be held to be ineligible to continue with their BTC training course, they cannot be restrained from continuing their BTC Course-2001 on the strength of the Government Order dated 29th December, 2008 except when the Government Order dated 20th October, 2005 is held to be valid and applicable to them, where-under the entire selection for admission to BTC Course-2001 was cancelled. The State Government cannot treat the persons admitted under the order of the High Court to the Course as a Class different from persons admitted by the State Government on its own on the strength of same admission test held for BTC Course-2001, (which was cancelled under the Government Order dated 20th October, 2005). Both have to be treated together as to form a class as a whole. Merely because the petitioners were admitted at a latter point of time and could not complete their BTC training course before issuance of the Government Order dated 20th October, 2005, it cannot be said that they are to be treated in a different manner.
On the facts on record, there would be four categories of candidates in respect of BTC Course-2001:
(a) candidates, who after declaration of the result of the entrance examination in 2003, were admitted to the BTC course-2001 and who had completed their second year training of the course and have appeared in the final year examination before issuance of the Government Order dated 20th October, 2005,
(b) those, who were admitted after re-examination of their case, under the order of the High Court, and who had completed their training but could not appear in the second year examination of the BTC course because of issuance of the Government Order dated 20th October, 2005,
(c) those who had been admitted on re-examination of their case under the order of the High Court, but could not complete their 2nd years training course nor could appear in the final year examination of BTC course, because of the issuance of the Government Order dated 20th October, 2005and
(d) those, who had appeared in the entrance examination held for admission to BTC Course-2001 but were not admitted.
In the opinion of the Court all four categories of students are to be treated at par viz-a-viz the entrance examination held in 2002 and which was cancelled under the Government Order dated 20th October, 2005, as upheld vide the Judgement of the Single Judge dated 24th April, 2006 and that of the Division Bench dated 31st August, 2007. Only benefit, which had been conferred in respect of (a) and (b) categories of candidates is that if they are successful in the fresh entrance examination to be held under the Government Order dated 20th October, 2005, they will not be required to undergo of training of 2nd years again.
This Court fails to understand as to how a separate test could be held in respect of (a) category of candidates only and on their achieving 33% marks in the said examination, they could be offered appointment without requiring them to compete with others candidates, in the matter of admission, belonging to categories (b), (c) and (d) as per the Government Order dated 20th October, 2005 and as per the directions of the Single Judge dated 24th April, 2006 and of Division Bench dated 31st August, 2007.
The order of the Secretary dated 18th November, 2009 rejecting the representations of the petitioners on the basis of said Government Order dated 29th December, 2008, is illegal. The order of the Secretary is hereby quashed.
The State must hold a fresh entrance examination amongst all the applicants, who had appeared in the entrance examination for admission to BTC Course-2001 in 2002, as per the Government Order dated 20th October, 2005 and as per the judgments of this Court dated 24th April, 2006 and dated 31st August, 2007 and all consequential action shall be taken accordingly. Petitioners are at liberty to participate in said entrance examination.
This Court my now refer to the issue as to what further action is required in the facts of this case, inasmuch as for last 9 years, the dispute qua admission to BTC Course-2001 could not be settled, because of successive illegalities committed by the State Government itself. This Court has already recorded its opinion that the Government Order dated 29th December, 2008 as well as the stand taken in paragraph-19 of the counter affidavit filed by the Secretary are contemptuous in nature and such action of the State cannot be permitted to go unnoticed.
This Court has already noticed the office note, which demonstrates that the Advocate General had clearly opined that an entrance examination is to be held from all the applicants who had appeared in the entrance examination held on 28th April, 2002 for admission to BTC Course-2001. Thereafter State Government filed an application for modification of the judgement and order dated 24th April, 2006 passed in Civil Misc. Writ Petition No. 69091 of 2005 (Vinod Kumar Yadav & others versus State of U.P. & others), being Civil Misc. Modification Application No. 62110 of 2008. The said application was rejected by the Single Judge vide order dated 1st May, 2008, after observing that the judgement and order of the Single Judge has merged into the judgment and order of the Division Bench dated 31st August, 2007 passed in Special Appeal No. 553 of 2006, modification, if any, can be asked for in the Special Appeal itself. The proper remedy for the State was to file an appropriate application, if so advised, in the Special Appeal, if it had any doubt qua the directions issued. The State Government did not approach the Division Bench for any clarification and on the basis of opinion obtained from the Special Counsel engaged for the purpose, the State Government has issued the Government Order dated 29th December, 2008.
This Court has serious doubt about the manner in which the opinion has been obtained and submitted. This Court feels that the conduct of the State-authorities including the Special Counsel tendering the opinion needs scrutiny, inasmuch as this Court has doubts that the opinion obtained and tendered was with an ulterior motive to confer benefit upon the candidates illegally admitted to BTC Course-2001 and for the purposes of making out a case for deliberately disobeying the judgements of the High Court. The apprehension so expressed by the Court is further supported from the interpolations made in the official records of the Secretariate as recorded below.
Although the Court is not expressing any final opinion qua the tampering in the official records, yet it must record that after page 186 there is an apparent overwriting in the pagination of the original records. The note sheet at page 200 refers to an note of Special Secretary, Legal at page 199, when as a matter of fact, the note of the Principal Secretary, Legal is at page 196. Further the note sheet at page 205 refers to an order on adjoining page 207, which is impossibility. The note sheet at page 210 refers to an adjoining order at page 212, which is also an impossibility. The note sheet at page 215 refers to adjoining page 217 containing the note of the Education Department, which is also an impossibility. Similarly page 217 refers to the adjoining page 219, which is also an impossibility.
The Court is deliberately not recording any final opinion qua tampering with the official records, only because, the issue of contempt and deliberate disobedience of the order of the Hon'ble High Court is to be examined by the Contempt Court and any opinion on the issue of tampering with official records may reflect upon the contempt proceedings ether away. The issue is left open to be examined by the Contempt Court.
Prima facie this Court may also record that the opinion expressed by the Special Counsel in his letter dated 5th may, 2008 is based on manifest incorrect reading of the judgment of the Single Judge and Division Bench of this Court. The opinion may have been obtained/submitted only for satisfying the desired will of the officers of the State Government. This issue also needs to be examined in detail by the Contempt Court, inasmuch as if the opinion has been tendered/obtained only to hood wink the Judgement of the Writ Court, action would be required to be taken against the persons tendering such an opinion as well as persons soliciting such opinion. In no case the judgement and order of the Hon'ble High Court can be permitted to be diluted with the help of patently unjust and unfair opinion specifically when the opinion has the affect of interference in the administration of justice.
The Hon'ble Supreme Court of India has repeatedly held that any action which interferes in the administration of justice is a criminal contempt.
In Dhananjay Sharma vs. State of Haryana & others reported AIR 1995 SC 1795, in paragraph-40 the Supreme Court has held as follows:
"40. ..........Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. ......"
In All Bengal Excise Licensees Association (Supra), the Hon'ble Supreme Court has held that wilful and deliberate act in utter disregard to the orders of the Court is to be construed as an act of contempt.
In view of the Division Bench judgement of this Court dated 13th May, 2010 passed in Special Appeal Defective No. 489 of 2010 (State of U.P. Thru'. Secretary Basic Shiksha Anubhag vs. Mukesh Chaturvedi & others), this Court directs that the records of the present writ petitions along with this order be placed before the Division Bench hearing the Criminal Contempt Petition for appropriate action being taken in the matter against all responsible. The said Division Bench may examine all aspect of the matter.
The writ petitions are partly allowed. The Government Order dated 29th December, 2008 is declared to be a nullity and the impugned order dated 18th November, 2009 is quashed. The State Government is directed to hold a fresh entrance examination for admission to Basic Training Course-2001 from all the applicants including the petitioners in light of the Government Order dated 20th October, 2005 and as per the judgements of the Single Judge dated 24th April, 2006 and that of the Division Bench dated 31st August, 2007. All consequential action shall be taken accordingly. The aforesaid exercise must be completed within three months from the date a certified copy of this Court is filed before the State Government.
Registrar General of this Court must place this order along with the records of the writ petitions before the Bench hearing Criminal Contempt matter within two weeks from today for appropriate action in the matter.
Original records produced before this Court are being returned to the learned Chief Standing Counsel today in the Court.
(Arun Tandon, J.) Order Date:-8th September, 2010 Sushil/-