Allahabad High Court
Rohit Kumar And 56 Others vs State Of U.P. And 43 Others on 29 October, 2021
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 2 (1) Case :- WRIT - A No. - 988 of 2021 Petitioner :- Rohit Kumar And 56 Others Respondent :- State Of U.P. And 43 Others Counsel for Petitioner :- Man Bahadur Singh,H.N. Singh Sr. Advocate Counsel for Respondent :- C.S.C., Arun Kumar,Ashok Kumar, Raghvendra Pratap Singh, Ram Prakash Shukla,Sanjay Chaturvedi, Sanjay Kumar Srivastava, Satish Chandra Yadav, Vikram Bahadur Singh,Yatindra (2) Case :- WRIT - A No. - 4462 of 2020 (e-court) Petitioner :- Atul Mishra And 61 Others Respondent :- State Of Up And 19 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi (3) Case :- WRIT - A No. - 4514 of 2020 Petitioner :- Raghuvendra Pratap Singh And 14 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Tarun Agrawal,Prashant Mishra Counsel for Respondent :- C.S.C. (4) Case :- WRIT - A No. - 4786 of 2020 Petitioner :- Deepak Arya And 77 Others Respondent :- State Of U.P. And 21 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,S. K. Verma,Vikram Bahadur Singh,Vivek Kumar (5) Case :- WRIT - A No. - 5199 of 2020 Petitioner :- Rubi Nigam And 25 Others Respondent :- State Of U.P. And 16 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Ram Prakash Shukla,Sanjay Kumar Singh,Vikram (6) Case :- WRIT - A No. - 5388 of 2020 Petitioner :- Mahendra Pratap Verma And 6 Others Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh (7) Case :- WRIT - A No. - 5807 of 2020 Petitioner :- Yogendra Pal Singh And 14 Others Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh (8) Case :- WRIT - A No. - 5865 of 2020 (e-court) Petitioner :- Sonveer Singh And 12 Others Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Tarun Agrawal,Prashant Mishra Counsel for Respondent :- C.S.C. (9) Case :- WRIT - A No. - 6145 of 2020 Petitioner :- Anoop Kumari And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Arun Kumar,Shashi Kant Verma (10) Case :- WRIT - A No. - 8501 of 2020 Petitioner :- Anuj Patel And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Akarsh Dwivedi,Tarun Jha Counsel for Respondent :- C.S.C. (11) Case :- WRIT - A No. - 10636 of 2020 Petitioner :- Sachin Kumar And Another Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Arun Kumar,Bhola Nath Yadav (12) Case :- WRIT - A No. - 14110 of 2020 Petitioner :- Aman Verma And 2 Others Respondent :- State Of U P And 5 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Arun Kumar,Vijai Kumar Srivastava (13) Case :- WRIT - A No. - 14279 of 2020 Petitioner :- Sachin Paliwal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Amit Shukla (14) Case :- WRIT - A No. - 2654 of 2021 Petitioner :- Arun Kumar Verma And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Arun Kumar,Manu Singh,Shashi Kant Verma (15) Case :- WRIT - A No. - 7656 of 2021 Petitioner :- Raghwendra Pratap Singh Respondent :- State Of U P And 5 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi,Shyam Krishna Gupta (16) Case :- WRIT - A No. - 8412 of 2021 Petitioner :- Amit Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Yatindra (17) Case :- WRIT - A No. - 10222 of 2021 Petitioner :- Aman Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Man Bahadur Singh,Kirti Chaurasia Counsel for Respondent :- C.S.C.,Bhupendra Kumar Yadav,Chandan Agarwal,Shyam Hon'ble Suneet Kumar,J.
1. The batch of petitions involve similar controversy, therefore, on request of the learned counsels for the parties, the writ petitions are being decided by a common judgment and order.
2. Heard Sri H.N. Singh, learned Senior Advocate, assisted by Sri Man Bahadur Singh and Sri Agnihotri Kumar Tripathi, learned counsels appearing for the petitioners. In all other matters, learned counsels for the petitioners have adopted the arguments advanced by learned Senior Advocate. Smt. Archana Singh, learned Addl. Chief Standing Counsel has advanced arguments on behalf of State; Sri Yatindra, Sri Vikram Bahadur Singh, Sri Arun Kumar and Sri Sanjy Kumar, Advocates, have put in appearance on behalf of Uttar Pradesh Board of Basic Education and have advanced their submissions.
3. Facts of writ petition No.-988/2021 is being referred to for the sake of convenience. The facts, interse, parties is not in dispute.
4. Petitioners, herein, are working in Junior Basic Schools in various districts of Uttar Pradesh, run and managed by the Uttar Pradesh Board of Basic Education1. Petitioners came to be selected and appointed pursuant to Assistant Teacher Recruitment Examination-2018.
5. By the instant petitions, petitioners have raised challenge to the legality and validity of the Government Order dated 4 December 2020, insofar Para 5(1), therein, denies issuance of No-Objection Certificate2 to the working teachers. A further direction has been sought directing the respondents to issue NOC to the petitioners and to appoint them in the district of their choice.
6. The facts, giving rise to the instant petition, briefly stated, is that pursuant to the Government Order dated 01 December 2019, applications were invited by the Board for Assistant Teacher Recruitment Examination-20193. Petitioners, being eligible and there being no prohibition/bar in the Government Order, applied to enable them to improve their merit and procure placement in a district of their choice. It is pointed out that the post of Assistant Teacher is a district cadre. As per Government Order dated 07 January 2019, the candidates belonging to General or open category were to obtain 65% marks, whereas, the candidates under reserved categories (scheduled caste, scheduled tribes and other backward classes) had to secure 60% marks. ATRE-2019 result was declared on 12 May 2020. As against 69000 vacancies 1,46,060 candidates were successful in securing minimum pass percentage marks.
7. The relevant extract of Government Order 7 January 2019 and Notification 16 May 2020 indicating the number of vacancies, the pass percentage marks and the number of qualified candidates is extracted:
lsok esa] 1 funs'kd 2 lfpo jkT; 'kSf{kd vuala/kku ,oa izf'k{k.k ifj"kn] ijh{kk fu;ked izkf/kdkjh] mRrj izns'k] y[kuÅA m0iz0 iz;kxjktA csfld f'k{kk vuqHkkx & 4 y[kuÅ fnukad% 07 tuojh] 2019 fo"k;%& mRrj izns'k csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed fo|ky;ksa gsrq ^^lgk;d v/;kid HkrhZ ijh{kk 2019** esa U;wure mRrh.kkZad fu/kkZfjr fd;s tkus ds lEcU/k esaA egksn;] mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn ds i= la[;k& cs0f'k0i0&16426&27@2018&19 fnukad 05 tuojh] 2019 dk lanHkZ xzg.k djsa] ftlsd }kjk ^^lgk;d v/;kid HkrhZ ijh{kk 2019** esa U;wure ^^mRrh.kZad** fu/kkZfjr fd;s tkus dk vuqjks/k fd;k x;k gSA 2&bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd'''kklu }kjk lE;d~ fopkjksijkUr ^^lgk;d v/;kid HkrhZ ijh{kk 2019** ds vk;kstu gsrq fuxZr 'kklukns'k la[;k& 2056@68&4&2018 fnukad 01-12-2018 ds Øe esa ijh{kk ifj.kke gsrq fuEuor~ U;wure mRrh.kkZad fu/kkZfjr fd;k tkrk gSA ;g U;wure mRrh.kkZad ek= ^^lgk;d v/;kid HkrhZ ijh{kk 2019** ds fy;s gh gksxk%& ¼d½ lkekU; oxZ ds vH;fFkZ;ksa dks iw.kkZad 150 esa ls 97 vad vFkkZr~ 65 izfr'kr ,oa vf/kd vad izkIr djus okys vH;fFkZ;ksa dks ^^lgk;d v/;kid HkrhZ ijh{kk] 2019** gsrq mRrh.kZ ekuk tk;sxkA ¼[k½ vU; leLr vkjf{kr oxZ ds vH;fFkZ;ksa dks iw.kkZad 150 esa ls 90 vad vFkkZr~ 60 izfr'kr ,oa vf/kd vad izkIr djus okys vH;fFkZ;ksa dks ^^lgk;d v/;kid HkrhZ ijh{kk] 2019** gsrq mRrh.kZ ekuk tk;sxkA ¼x½ mijksDr ^d* ,oa ^[k* ds vk/kkj ij mRrh.kZ vH;FkhZ 69]000 fjfDr;ksa ds fo:) foKkfir inksa ij vkosnu djus ds vf/kdkjh gksaxs ,oa mijksDr U;wure mRrh.kkZad ds vk/kkj ij lQy gksus ek= ij gh fdlh vH;FkhZ dks fu;qfDr gsrq vf/kdkj ugha gksxk D;ksafd ;g ijh{kk fu;qfDr ds fy;s dsoy ik=rk ekun.Mks esas ls ,d gSA ¼?k½ fu/kkZfjr foKkfir inksa dh la[;k ¼69000½ ls vf/kd vH;FkhZ mRrh.kZ gksus dh fLFkfr esa lQy gksus okys dqy vH;fFkZ;ksa esa ls vfUre esfjV ds vk/kkj ij foKkfir inksa ds lkis{k mRrj izns'k csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh] 1981 ds chlosa la'kks/ku ds ifjf'k"V &1 ,oa fu/kkZfjr vkj{k.k ds vuqlkj vgZ vH;fFkZ;ksa dk p;u fd;k tk;sxkA 'ks"k vH;FkhZ p;u izfdz;k ls Lor% ckgj gks tk;saxs rFkk bl ^^lgk;d v/;kid HkrhZ ijh{kk] 2019** ds vk/kkj ij p;u gsrq dksbZ vf/kdkj ugha gksxkA Hkonh;
x x x x dk;kZy; lfpo mRrj izns'k csfld f'k{kk ifj"kn] iz;kxjkt i=kad cs0f'k0i0@778@2020&21 fnukad% 16-05-2020 foKfIr 'kklukns'k la[;k&344@68&5&2020 fnukad 13-05-2020 ds vuqØe esa m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa 69]000 lgk;d v/;kidksa dh HkrhZ ds fy, vk;ksftr lgk;d v/;kid HkrhZ ijh{kk&2019 esa mRrh.kZ 1]46]060 vH;fFkZ;ksa esa ls tuinokj fu/kkZfjr inksa dh la[;k ¼tks ?kV c<+ ldrh gS½ ij p;u@fu;qfDr gwrq m0iz0 csfld f'k{kk v/;kid lsok fu;ekoyh&1981 ¼v|ru la'kksf/kr½ esa mfYyf[kr izkfo/kkuksa rFkk okafNr'''kSf{kd@izf'k{k.k vgZrk/kkjh vH;fFkZ;ksa ls tuin vkoaVu gsrq vkWuykbu vkosnu i= vkeaf=r fd;s tkrs gSaaA
8. Consequent, thereof, shortlisted candidates were called upon by the Board to make on-line applications for counselling and appointment pursuant to the Government Order dated 13 May 2020. The counselling was to be held by the Selection Committee in respective districts. The successful candidates already working in Government department, semi-Government department, Board were required to submit NOC of their employer. Accordingly, some of the petitioners obtained NOC from their respective District Basic Education Officers, which subsequently came to be cancelled. The NOC was declined to the other successful Assistant Teachers pursuant to the Government Order dated 4 December 2020. The impugned para 5(1) is extracted:
isz"kd] loksZPp izkFkfedrk
js.kqdk dqekj] la[;k& 1656@68&5&2020
vij eq[; lfpo]
mRrj izns'k 'kkluA
lsok esa]
1- leLr ftykf/kdkjh] 2- egkfuns'kd]
mRrj izns'kA Ldwyf'k{kk] m0iz0 y[kuÅA
3- funs'kd] 4- leLr csfld f'k{kk vf/kdkjh]
csfld f'k{kk] m0iz0 y[kuÅA mRrj izns'kA
csfld f'k{kk vuqHkkx&5 y[kuÅ% fnukad% 04 fnlEcj] 2020
fo"k;& ifj"knh; izkFkfed fo|ky;ksa esa 69]000 fjDr inksa ds lkis{k vH;fFkZ;ksa ds p;u@fu;qfDr izfdz;k esa vfHkysa[kksa esa folaxfr ds lEcU/k esa Li"Vhdj.k (Clarification)A egksn;] mi;ZqDr fo"k;d egkfuns'kd] Ldwy f'k{kk] m0iz0 ds i= la[;k&egkfu0Ldw0f'k0@6030@2020&21] fnukad 11-11-2020 dk d`i;k lUnHkZ xzg.k djus dk d"V djsa] ftlds }kjk ifj"knh; izkFkfed fo|ky;ksa esa 69]000 fjDr inksa dks Hkjs tkus gsrq csfld f'k{kk vf/kdkfj;ksa }kjk izkIr djk;h x;h folaxfr;ksa ds lEcU/k esa vxzsrj dk;Zokgh gsrq funsZ'k miyC/k djkus dh vis{kk dh x;h gSA mDr ds lEcU/k esa 'kklu Lrj ij fnukad 18-11-2020 dks foHkkxh; vf/kdkfj;ksa ds lkFk lEiUu cSBd ds dze es ifjyf{kr folaxfr;ksa ds lEcU/k esa fuEukuqlkj dk;Zokgh fd;s tkus dk fu.kZ; fy;k x;k gS%&a vH;FkhZ ds vkosnu ,oa izLrqr vadi= ,oa izek.k i= esa ekrk&firk dk uke vyx gS] rks Lohdkj ugha fd;k tk;sxk] ijUrq ekrk ds LFkku ij firk dk uke vkSj firk ds LFkku ij ekrk dk uke vafdr gS rks vU; oS/kkfud vfHkys[kksa ls ijh{k.kksijkUr ;g iq"V gksrk gS fd vH;FkhZ ds ekrk ,oa firk dk okLrfod uke ogh gS rks bl fyfidh; =qfV ds fy, mldk p;u fujLr ugha fd;k tk;sxkA fcUnq la[;k&5% vukifRr izek.k i= ¼,u0vks0lh0½ ds dkj.k & mi;qZDr izdkj ds folaxfr;ksa ds lEcU/k esa fuEukuqlkj dk;Zokgh fd;s tkus dk fu.kZ; fy;k x;k gS%& ¼1½ vH;FkhZ tks f'k{kk foHkkx esa iwoZ ls lgk;d v/;kid in Ikj dk;Zjr gSa mlh foHkkx esa led{k in ds fy, dk;ZeqDr ugha fd;k tk;sxk D;ksafd f'k{kdksa dks vUrtZuinh; LFkkukUrj.k dh lqfo/kk vuqeU; gSA ¼2½ ,sls vH;FkhZ tks vU; foHkkx esa dk;Zjr gSa mUgsa fu;qfDr&i= iznku dj fn;k tk;s rFkk vius ewy foHkkx ls dk;ZeqDr gksdj dk;Z Hkkj xzg.k djus gsrq rhu ekg dk le; fn;k tk;sxkA d`i;k mijksDr fn'kk&funsZ'kksa ds vuqlkj vxzsRrj dk;Zokgh lqfuf'pr djkus dk d"V djsaA
9. The grievance of the petitioners is that they were working as Assistant Teacher in different districts of Uttar Pradesh and had appeared in ATRE-2019 to improve their percentage marks so as to enable them to get their preferred choice of district. It is urged that by the impugned Government Order, petitioners, have been deprived NOC to participate in the counselling for appointment and placement, for the reason that under the Rules governing the Assistant Teachers, there is a provision for securing inter-district transfer. In other words, it is sought to be submitted that para-5(1) of the Government Order discriminates against the petitioners, vis-a-vis, other candidates employed/working in other departments of the Government. It is urged that the Government order to that extent is violative of Article 14 and 16 of the Constitution of India.
10. Respondents have taken a stand that since petitioners are already an Assistant Teacher working in various Junior Basic Schools, they have a right to apply and seek transfer inter district under the Rules. It is urged that they have been rightly not been issued NOC to participate in the counselling or join at the district upon selection. It is further submitted that in the event of NOC being issued to the petitioners, who are working Assistant Teachers, that many post would remain vacant and would not sub-serve the purpose of the Board recruiting teachers. It is further argued that there is no provision of waiting-list, therefore, vacancies falling vacant as a consequence of petitioners being appointed and allotted district, other than the district of their choice, would be against the object of recruiting Assistant Teachers. The Government Order is fair, just and non discriminatory.
11. Rival submissions fall for consideration.
12. The Board, duly constituted, is governed under the provisions of U.P. Basic Education Act, 19724. Section 13 of the Act, 1972, provides for control of the State Government and envisages that the Board shall carry out such directions, as may be issued from time to time by the State Government, for the efficient administration of the Act. The appointment and selection of Assistant Teacher is governed by U.P. Basic Education (Teachers) Service Rules, 19815. This fact is reflected from the Guidelines dated 1 December 2018, issued by the Government for ARTE 2019. The relevant portion of the Government Order and guidelines is extracted:
lsok esa] funs'kd] lfpo] jkT; 'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn] ijh{kk fu;ked izkf/kdkjh] m0 iz0] y[kuÅA m0iz0]bykgkcknA csfld f'k{kk vuqHkkx & 4 y[kuÅ% fnukad% 01 fnlEcj] 2018 fo"k;%& ^^lgk;d v/;kid HkrhZ ijh{kk 2019** ds vk;kstu gsrq xkbM ykbUl@ fn'kk funsZ'kA egksn;] mi;qZDr fo"k;d lfpo] ijh{kk fu;ked izkf/kdkjh ds i= la[;k&xksi0@l0v0Hk0i0&19@21556&59@2018&19 fnukad 01 fnlEcj] 2018 dk lanHkZ xzg.k djsa] ftlds }kjk ^^lgk;d v/;kid HkrhZ ijh{kk 2019** ds laca/k esa ekxZn'khZ fl)kUr] xkbM ykbUl] izfØ;k vkSj le; lkfj.kh ds laca/k esa 'kklukns'k fuxZr fd;s tkus dk vuqjks/k fd;k x;k gSA 2& bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklu }kjk lE;d~ fopkjksijkUr m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa ^^lgk;d v/;kid HkrhZ ijh{kk 2019** vk;ksftr fd;s tkus gsrq ekxZn'khZ fl)Ur] xkbM ykbUl] izfØ;k vkSj le; lkfj.kh layXu dj fuxZr fd;k tkrk gSA 3& ^^lgk;d v/;kid HkrhZ ijh{kk 2019** m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid ds dqy 69]000 fjDr inksa ij HkrhZ ds fy;s vk;ksftr dh tk;sxhA ;g ijh{kk ek= blh HkrhZ ds fy;s gh ekU; gksxhA layXud& ;FkksifjA Hkonh;] Guidelines:
csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa ^^lgk;d v/;kid HkrhZ ijh{kk 2019 dk vk;kstu djus ds fy, ekxZn'khZ fl)kUr] xkbM ykbUl] izfØ;k vkSj le; lkfj.kh ¼[k½ lgk;d v/;kid HkrhZ ijh{kk m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid ds inksa ij HkrhZ gsrq 69]000 inksa ds lkis{k vk;ksftr dh tk;sxhA fo'ks"k ifjfLFkfr;ksa esa inksa dh la[;k ?kV@c<+ ldrh gSA ;g ijh{kk ek= blh HkrhZ gsrq ekU; gksxhA 2& ijh{kk laLFkk 'kklukns'k la0& 4029@15&11&2017 fnukad 24-11-2017 }kjk lgk;d v/;kid HkrhZ ijh{kk ds vk;kstu gsrq ijh{kk laLFkk ds :i esa jkT; 'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn] m0iz0 y[kuÅ dh bdkbZ ^^lfpo] ijh{kk fu;ked izkf/kdkjh] ,yuxat] m0iz0 iz;kxjkt** dks ukfer fd;k x;k gSA 3----------------------------------------------
4& vkosnu ds fy, U;wure vgZrk] vk;q ,oa fuokl & 1- mRrj izns'k csfld f'k{kk ¼v/;kid½ lsok ¼ckblokWa la'kks/ku½ fu;ekoyh 2018 ds fu;e& 08 esa mfYyf[kr 'kSf{kd] izf'k{k.k mRrh.kZ Hkkjr ljdkj vFkok jkT; ljdkj }kjk vk;ksftr izkFkfed Lrj vkosnu 'kqYd ls izkIr /kujkf'k dk O;; ijh{kk lEcU/kh dk;ksZa ds fy, foRr foHkkx }kjk tkjh ferO;;rk ds fl)kUrksa ds vuqlkj lfpo] ijh{kk fu;ked izkf/kdkjh] m0iz0 iz;kxjkt }kjk fd;k tk;sxkA
13. In view to uniformly raise the standard of teachers and teaching, Parliament enacted the Right of Children to Free and Compulsory Education Act, 20096. Central Government, in exercise of powers conferred under Section 23 of RTE Act, 2009, notified the National Council for Teachers Education7 as the Academic Authority. The qualification prescribed by NCTE for the appointment of teachers was uniformly made applicable throughout the country so as maintain a uniform standard of teaching in different categories of schools defined under the RTE Act, 2009. The State Government, accordingly, amended the qualifications in the respective Rules governing the appointment of teachers pursuant to the qualifications notified by NCTE, which was not only binding but had an overriding effect. The NCTE on 23 August 2020, notified the qualifications for teachers in schools providing elementary education from Class 1 to 8. The notification subsequently came to be modified. Pursuant thereof, the State Government incorporated by way of amendment the qualifications under the Rules, 1981. The 23rd amendment in Rules, 1981, notified on 24 January 2019, was made applicable from a retrospective date i.e. 1 January 2018. The amended Rules, 1981, is relevant for the purpose of the instant controversy.
14. Rule 14 of Rules, 1981, provides the procedure of selection/determination of vacancies. The Assistant Teachers Recruitment Examination is to be conducted for the determined vacancies and the result is to be communicated to the Secretary of the Board, who thereafter, shall invite applications from successful candidates and recommend the names for counselling as per the option exercised by the candidates to the respective District Basic Education Officer for appointment. The District Basic Education Officer is the appointing authority of the Assistant Teacher of their respective district. Rules 16, 17 and 19 of Rules, 1981, provide the constitution of Selection Committee; verification of academic record and eligibility of the candidates. Upon verification and determining the quality point marks, the Selection Committee shall forward the names of the candidates to the appointing authority for issuance of appointment order. The relevant provisions of Rules, 1981, is extracted:
2- (b) "Appointing Authority" in relation to teachers referred to in Rule 3 means the District Basic Education Officer;
(h) "Junior Basic School" means a basic school where instructions from Class I to V are imparted;
(w) "Assistant Teacher Recruitment Examination" means a written examination conducted by the Government for recruitment of a person in junior basic schools run by Basic Shiksha Parishad.
(x) "Qualifying Marks of Assistant Teacher Recruitment Examination" means such minimum marks as may be determined from time to time by the Government.
(y) "Guidelines of Assistant Teacher Recruitment Examination" means such guidelines as may be determined from time to time by the Government.
14. Procedure of Selection - (1) Determination of vacancies - In respect of appointment, by direct recruitment to the post of Assistant Master of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes and other categories under Rule 9 and forward to the Secretary, Uttar Pradesh Basic Education Board, Prayagraj. Information of compiled vacancies as per reservation shall be provided by the Secretary, Uttar Pradesh Basic Education Board, Prayagraj to the Examination Body. For the notified vacancies an Assistant teacher Recruitment Examination shall be conducted by the Examination Body authorised as such by the Government and result, according to reservation, shall be provided to Secretary, Uttar Pradesh Basic Education Board, Prayagraj.
Thereafter, an advertisement for recruitment will be published in at least two leading daily news papers having adequate circulation in the State by the Secretary, Uttar Pradesh Basic Education Board, Prayagraj inviting online applications from candidates possessing prescribed educational and trainings qualification and passed teacher eligibility test, conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the Government, in which cadre wise district option will be filled by the candidates.
(2).............................
(3) The name of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weightage as specified in the Appendix I:
Thereafter, cadre wise district will be allotted to the candidates as per their quality points and options by the Secretary, Uttar Pradesh Basic Education Board, Prayagraj and list will be sent to the appointing authority.
(4) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (3).
(5) The list prepared under sub-rule (2) and received in accordance with sub-rule (3) of Rule 14 from the Secretary, Uttar Pradesh Basic Education Board, Prayagraj, shall be forwarded by the appointing authority to the Selection Committee."
"17. Procedure for direct recruitment -The Selection Committee shall verify the academic records and eligibility of candidates on the basis of the list referred to in clause (a) of sub-rule (3) of Rule 14 or sub-rule (2) of Rule 15. After verification and determining the eligibility of candidates the Selection Committee shall forward the name of the candidates to the appointing authority."
"19. Substantive Appointment - The appointing authority shall make appointment to any post referred to in Rule 5 by taking the names of the candidates in the order in which they stand in the list prepared under Rule 17 or 18, as the case may be. The character verification will be done by every appointed candidates compulsorily."
15. It is clear from the reading of Rule 14 and 17 that option has to be exercised by the candidate district wise, the names of the candidate has to be arranged in accordance with the quality point marks secured by the candidate. Thereafter, cadre wise district will be allotted to the candidates as per quality points and options. The appointment would, thereafter, be made by the appointing authority in the order in which the names of the candidate stands in the list prepared by the Selection Committee. In other words, the Rules, 1981, mandatorily provides allocation of district to the selected candidate on quality points based on option of the candidate.
16. It is urged that in view of Rules 14 to 19, the State Government has no role and as per the Rules, the process of selection has been conferred upon the Board and the Selection Committee. In the backdrop of the Rules, it is submitted that the State Government prohibiting the issuance of NOC to the petitioners and allowing NOC to be issued to candidates working in other departments is discriminatory. It is submitted that the cadre of Assistant Teacher is district wise and inter-district transfer is an exception and not an incidence of service governed by U.P. Basic Education (Teachers) (Posting) Rules, 2008. The Rules, 2008, prohibits a teacher from seeking transfer unless he/she has put in five/three years of service respectively in the district. In other words, it is sought to be urged that a male teacher can seek transfer after putting in five years of service and a female teacher after putting in three years of service. The embargo of 5/3 years would, however, not apply in the case of those teachers who seek transfer in exceptional ''exigencies'. The option for transfer can be exercised by a teacher only once. In short, it is urged that petitioners have a right to improve their percentage marks so as to enable them to seek placement in a district of their choice which is part of the selection process. It is urged that objection being raised by the respondents is without any basis and unreasonable.
17. It is further submitted that issuing NOC to the petitioners would have no bearing on the vacancies being sought to be filled by ATRE-2019. It is admitted by the respondents that as against 69000 vacancies, 1,46,000 candidates have qualified on having obtained minimum percentage marks. Board is bound to recommend 69,000 candidates, including the petitioners who have qualified. Placement of the petitioners in the district of their choice, on their percentage marks, would have no bearing on the vacancies to be filled up. That many number of candidates (1,46,000 - 69,000) i.e. 77,000 over and above the vacancies is available with the Board and would have to go without appointment. It is, therefore, urged that the plea of wait list and of vacancies being not filled up, on petitioners being adjusted/appointed in the districts of their choice would have no bearing on the vacancies. The stand of the respondents is without any foundation or basis.
18. It is not in dispute that the petitioners have been selected and cleared for appointment in various districts pursuant to ARTE 2019, and at that stage they have been prohibited issuance of NOC by the impugned Government Order. The plea of the Board that issuing NOC to the petitioners would disturb the student teacher ratio in the institutions, where they are working is misconceived. As noted herein above, 77,000 candidates exceed 69,000 vacancies, issuance of NOC to the petitioners would have no bearing on the student teacher ratio, as all the 69,000 teachers selected would be given placement in the various institutions of the district of their choice, including the petitioners. The placement of the petitioners in the district of their choice, based on their quality point marks, would have no bearing either on the number of vacancies or the number of teachers to be recommended against 69,000 vacancies. For instance, by way of illustration, 100 working Assistant Teachers are given posting say in 20 districts, upon selection. The 100 teachers are part of the selected 69,000 teachers against that many vacancy. Their placement would impact the number of vacancy district wise i.e. the district from where they are placed would witness a fall in the vacancy. Like wise there will be an increase in the vacancy of Assistant Teacher of that many number of teachers adjusted. But the adjustments would leave no impact on the overall vacancies. The selection and placement of the petitioners would neither increase the number of selected candidates nor reduce the number of vacancies to that extend. The plea of the State and Board that the teacher student ratio would be disturbed on the placement of petitioners, and/or the Board would have to recommend candidates over and above 69,000 vacancy (wait list) is misconceived, imaginary and irrational. The argument taken on face value is absurd and does not subscribe to reason.
19. On specific query, learned counsels appearing for the State and the Board admit that there is no embargo in any of the Government Orders pertaining to ARTE 2019 prohibiting the Assistant Teachers already working in Basic schools from applying for the post of Assistant Teacher. It is further not being disputed by the respondents that improvement of percentage marks by the petitioners would enable them to make a choice of district. It is not being disputed that the cadre of Assistant Teachers is district cadre and transfer is not a general condition of service. It is further not being disputed that the allotment/placement to a district of a selected candidate is a part of the selection process of Assistant Teacher, solely dependent on the quality points secured by a candidate. The Rules, 2008, does not confer, as a matter of right, upon the Assistant Teacher to seek inter district transfer. The teacher can apply for transfer after putting in a requisite member of years of service as provided in the rules. The Board would consider the application based on a number of factors, viz, availability of teachers, teacher-student ratio, vacancy etc. In other words, the inter-district transfer cannot be claimed by a teacher as of right.
20. As against transfer, an Assistant Teacher can claim placement to a district of choice based on the percentage marks obtained in the selection process and the option exercised by the candidate. The Board or the Selection Committee have not been conferred any power under the Rules, 1981, for placement of a selected candidate to a district, but based on the option of the candidate and the quality point marks obtained by the selected candidate in the recruitment examination.
21. Government order dated 4 December 2020, is clarificatory in view of the anomalies noted, therein. The impugned para 5(1) of the said Government Order seeks to rectify an anomaly and in doing so the Government prohibits Assistant Teachers who are already appointed and working from issuance of NOC from their employer, as against, candidates working in other Government departments. On plain reading, the Government has not clarified, as to how, the selected candidates working as Assistant Teachers are to be adjusted in the district of their choice, but on the contrary the Government Order is in the nature of an injunction restraining the Board and the appointing authority i.e. the District Basic Education Officer from issuing NOC. In other words, the selection and placement, both part of the same recruitment, has been set at naught, insofar, the petitioners are concerned. In my opinion the Government Order to that extend has exceeded the power, authority and jurisdiction conferred upon the Government under Act, 1972 and the Rules, 1981. Para 5(1) of the Government Order 4 December 2020, is an arbitrary exercise of power having no nexus with the object or clarification it seeks to remedy. Executive action to escape wrath of Art. 14 has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism, in pursuit of appointment and equitable treatment.
22. Accordingly, the writ petition is allowed by passing the following orders:
(i.) Para 5(1) of the Government Order dated 4 December 2020 is declared arbitrary, unreasonable, discriminatory and exceeding the authority conferred under Act, 1972 and Rules, 1981.
(ii.) Respondents are directed to issue NOC to all the petitioners recommended by the Selection Committee.
(iii.) All those Petitioners prohibited, in view of the Government Order dated 4 December 2020, from participating in the counselling, shall appear for counselling on the date to be notified by the Board.
(iv.) Petitioners shall be given appointment and placement of district strictly in accordance with Rules, 1981.
(v.) This order shall apply to all the candidates who have not approached this court but are affected by the impugned Government Order.
(vi.) The afore-noted orders shall be complied by the respondents within four weeks from the date of supply of copy of this order.
No Cost.
Order Date :- 29.10.2021/S. Prakash