Uttarakhand High Court
Rajesh Prasad Dobhal vs State Of Uttarakhand And Others on 9 August, 2017
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 106 of 2016
Rajesh Prasad Dobhal ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 347 of 2017
With
Application for Leave to Appeal No. 6829 of 2017
Manoj Kumar Rathore and others ............ Appellants
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 59 of 2016
Charan Singh Rawat and others ............ Appellants
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 60 of 2016
Prem Singh Rawat and others ............ Appellants
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 67 of 2016
Prakash Chandra Nautiyal and others ............ Appellants
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 98 of 2016
2
Anil Kumar ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 108 of 2016
Sanjay Gaur ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 109 of 2016
Rajendra Singh Gusain ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 110 of 2016
Ashwani Kumar Bhatt ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 107 of 2016
Shailendra Mohan Raturi ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 111 of 2016
Narendra Kumar Sharma ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
3
Special Appeal No. 112 of 2016
Mohan Lal ............ Appellant
Versus
State of Uttarakhand and others ............. Respondents
With
Special Appeal No. 420 of 2017
With
Application for Leave to Appeal No. 8069 of 2017
Delay Condonation Application in Time Barred SPA No. 9426 of 2017
Shashi Bhushan Uniyal and others ............ Appellants
Versus
State of Uttarakhand and others ............. Respondents
Mr. C.D. Bahuguna, Senior Advocate assisted by Mr. Anup Kumar Verma, Advocate for
the appellants in SPA No. 59 of 2016, SPA No. 60 of 2016, SPA No. 67 of 2016, SPA
No. 98 of 2016, SPA No. 106 of 2016, SPA No. 108 of 2016, SPA No. 109 of 2016, SPA
No. 110 of 2016, SPA No. 107 of 2016, SPA No. 111 of 2016 and SPA No. 112 of 2016.
Mr. Yogesh Pacholia, Advocate for the appellants in SPA No. 347 of 2017 and SPA No.
420 of 2017.
Mr. Kishore Kumar, Advocate for the writ petitioners/respondent nos. 4 to 7 in SPA No.
347 of 2017 and SPA No. 420 of 2017.
Mr. C.S. Rawat, Additional Chief Standing Counsel for the State of Uttarakhand.
Dated: 09th August, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
K.M. JOSEPH, C.J. (Oral) We are inclined to grant leave in SPA No. 347 of 2017 and SPA No. 420 of 2017. Accordingly, the applications for leave to appeal will stand allowed.
2. Heard learned counsel for the parties in Special Appeal No. 420 of 2017 on the delay condonation application. In the 4 circumstances, the delay will stand condoned. The delay condonation application will stand allowed.
3. All these appeals being connected, we are disposing of the same by this common judgment.
4. SPA No. 98 of 2016, SPA No. 106 of 2016, SPA No. 108 of 2016, SPA No. 109 of 2016, SPA No. 110 of 2016, SPA No. 107 of 2016, SPA No. 111 of 2016 and SPA No. 112 of 2016 are all filed by the writ petitioners. These appeals have been lodged against the judgment of the learned Single Judge in a batch of writ petitions filed by the appellants. For the sake of brevity, we take SPA No. 106 of 2016 as the leading case, which is filed against the judgment passed in Writ Petition (S/S) No. 1613 of 2014. Therein, the prayers sought are as follows:
"I- Issue a writ, rule, order or direction in the nature of certiorari calling for records and to quash the impugned notification dated 27.6.2014 issued by Additional Director S.C.E.R.T Uttarakhand i.e. respondent no. 4, so far as it relates to petitioner, as the petitioner is appointed against the substantive posts and the respondent authorities by its own order absorbed him and have given him posting in the permanent capacity.
II. Issue a writ, rule, order or direction in the nature of Mandamus commanding and directing the respondents to not to interfere in the peace functioning of petitioner on the post of Assistant Block Resource Centre Coordinator and pay him salary and other allowances, as admissible to him, month by month basis."5
There is no dispute that the prayers in other writ petitions are similar.
5. SPA No. 59 of 2016, SPA No. 60 of 2016 and SPA No. 67 of 2016 are filed by the persons, who are not the writ petitioners but who claim to be affected by the common judgment. The remaining two appeals being SPA No. 347 of 2017 and SPA No. 420 of 2017 are filed against the judgment rendered by another learned Single Judge. We shall refer to the said judgment later on.
6. In order to appreciate the facts, it is necessary to give a background of the case. Before the creation of the State of Uttarakhand, in the Districts situated in the present State i.e. Haridwar, Tehri Garhwal, Uttarkashi, Pithoragarh, Champawat and Bageshwar, the Primary Education Scheme No. III was running under the scheme within a District at each Block level, 01 post of Block Coordinator, 02 posts of Assistant Block Coordinator and at each Naya Panchayat level a Naya Panchayat Coordinator existed (see para 3(B) of the counter affidavit filed in Writ Petition (S/S) 1204 of 2014). A separate society was created on 17.02.2001 as "Uttaranchal Sabhi Ke Liya Siksha Parishad" (see para 3(C) of the counter affidavit filed in Writ Petition (S/S) 1204 of 2014). In the year 2002, the Government of India sanctioned the "Serva Shiksha Abhiyan"
project for the rest of seven Districts of Uttarakhand i.e. Dehradun, Chamoli, Pauri, Rudraprayag, Nainital, Udham Singh Nagar and Almora. Certain numbers of posts were sanctioned. By the order dated 19.03.2003, the Governor was pleased to sanction these posts till 31.03.2010 with a condition.6
The posts could be cancelled earlier, without any prior notice (see para 3(E) of the counter affidavit filed in Writ Petition (S/S) 1204 of 2014). The posts, according to the Government, were actually ex-cadre posts, which were sanctioned during the period of the said project. For these posts, the teachers of the Education Department, who were having the same pay-scale were to be posted and the lien of these post holders was to remain in the substantive post of the Education Department.
The next order to notice is the order dated 28.07.2003. Since it may be relevant for deciding the issues raised in these appeals, we refer to the translated version of the said order made available to us by the appellants. It reads as follows:
Letter no./A.E.O./1002/N/2003-04 dated 28 July, 2003.
Subject: Regarding deputation on the post of Assistant Coordinator in the Block Resource Centre and on the post of Coordinator in Cluster Resource Centre, under the Movement of Education to all.
Sir, Under the Movement of Education to all, in district Chomoli, Almora, Rudra Prayag and Dehradun, 2 posts of Assistant Coordinator in the pay scale of Rs.5500-9000 in each Block Resource Centre and one post of Coordinator in the pay scale of Rs.5500-9000 in each Cluster Resource Centre, are created in the following manner. These posts can be cancelled even before completion of project without any information:-7
Sr. Name of Block Resource Centre Cluster Resource Centre no. district Assistant Coordinator Coordinator (pay scale-5500-9000) (pay scale-5500-9000) 1. Chamoli 18 104 2. RudraPrayag 06 48 3. Almora 22 106 4. Dehradun 12 89 These posts are to be filled up by the Education department by deputation. The following would be the requisite qualification and selection process for deputation.
1. B.R.C. Assistant- Coordinator and Cluster Resource Centre Coordinator (pay scale 5500-9000):-
For these posts, such teacher would be eligible who is employed in Government/ Board School, who is drawing the minimum monthly Basic pay of Rs.5500/- or above, and possesses Bachelor degree and B.Ed./B.T.C. or have received equivalent training and also possesses the experience of at least 5 years in teaching the primary / elementary classes.
2- Selection Committee:-
For selecting candidates on the posts of Block Resource Centre Assistant-Coordinator (5500-9000) and Cluster Resource Centre Coordinator (5500-9000), the following selection committee is constituted at district level:
Principal, DIET (concerned District) .......Chairman District Basic Education Officer, Barkot ......Member Senior Principal as nominated by the District Inspector of Schools of the concerned District .....Member One representative as nominated by Additional Director, SCERT ........Member A Senior Lecturer as nominated by the Principal, DIET ........Member In the above committee one member has to be belonging to Scheduled caste category.8
3- Selection Process:-
The following will be the selection process on the above posts:
(a). Written Examination:-
Written examination of the candidate making application, will be conducted by the DIET of the concerned district under the guidance of the Board of State Education, Investigation and Training. For written examinations, question papers would be prepared by the SCERT. Question papers would of 80 marks and of 3 hours. In the first part of the question paper, there would be questions of 50 marks based on the problems of elementary education and would be subject wise and also like essay. The second part of the question paper of 30 marks, would relate to two different subjects of the candidate and preparing model teaching planning.
(b). Group discussion and Interview:-
A preference list would be prepared of the candidates who have been successful in the written examination and candidates would be invited for Interview and group discussion as against available posts in the ratio of 1:3. In the Interview and group discussion, there would be question pertaining to the urgent issues of elementary education of the Uttaranchal State. Group discussion and Interview both would carry 10-10 marks, total being 20 marks.
The candidates, who remain successful in written examination, group discussion and Interview, they would be given posting as per the preference given in the combined preference list. The candidate possessing degree of M.Ed., M.Fill., Ph.D., and having higher level of training in primary/ elementary education, may be considered to give preference in Interview.
A candidate employed in any district may apply only against the posts allotted for that district. For making selection on these posts, applications would be invited by the DIET of the concerned district till 10 August 2003; and till 12 August 2003 applications may be scrutinized; and till 18 August 2003 written examination may be conducted; and group discussion and Interview 9 may be held till 25 August 2003; and till 31 August 2003, posting may be given to the candidates. Consequent to this posting, regular pay scale and admissible allowances would be payable to the concerned person but no additional allowance would be payable. The candidates who are posted on these posts, their posting can be cancelled at any time without show cause notice if their work is not found to be satisfactory, and the concerned person would be sent back to his original post.
Sd/-
(M.C. Pant) 28/7/2003 State Project Director, Uttaranchal, Dehradun."
7. It is pursuant to the same that a notification was issued inviting applications to fill up the posts, which were mentioned. There was a selection process, which included written examination, group discussion and interview. The appointment orders of the appellants, which have been produced as Annexure No. 3 in the Writ Petition (S/S) No. 1204 of 2014 would also show that they were posted on deputation against the posts, for which they were selected. Subsequently, another order was passed being order dated 31.03.2008. The translated version of the same reads as follows:
"Uttaranchal Board of Education for All State Project Officer Shiksha Sankul, Mayur Vihar, Sahastradhara Road, Dehradun E-mail [email protected] Phone/Fax : 0135 : 2781941, 2781942, 2781943 Order No. R.P.K./3014 /BRC/2007-08 Dehradun : Dated 31st March 2008 10 Office Order While partially amending office letter no. S.S.A./1002/N/2003-04, hereby, I have been directed to state that in all appointment letters of all development blocks of the State, o the post of B.R.C. Coordinator, B.R.C. Assistant Coordinator and C.R.C. Coordinator, the word mentioned as "Deputation" may be read as "Deployment". The service condition of all the employees posted on the post of B.R.C. and C.R.C. would be under the rules of their cadre of the original department.
Sd/-31-03.08 (Pushpa Manas) State Project Director Uttarakhand, Dehradun
8. Thereafter, the Government passed an order dated 05.02.2013. It contemplates selection to the post of Block Resource Person (BRP) and Cluster Resource Person (CRP).
Being relevant for the purpose of this case, we extract the same as follows:
"Government Order No.226/xxiv/(1)2013-25/2006 From:
Manisha Panwar, Secretary, Govt. of Uttarakhand.
To State Project Director, Education for all movement, Uttarakhand, Nanoorkheda, Dehradun.
Basic Education (Basic) Section-I Dehradun: dated 05 February, 2013 Subject: Regarding selection of Block Resource Person (B.R.P.) and Cluster Resource Person (C.R.P.) against the vacant posts, created under 11 District Primary Education Program-III, Basic Education Project and Education for all movement, under the planning of R.T.E. Sir, Please take reference of your letter no.- R.P.N./752/B.R.C.-C.R.C./2012-13 dated 13.06.2012, and the letter no.-R.P.N./2491/B.R.C.-C.R.C./2012-13 dated 05.12.2012, by which proposal was made available to the Government for changing designation of the posts of Block Coordinator/ Assistant Coordinator and Cluster Resource Coordinators, created under District Primary Education Program-III and Basic Education Project; and by which these posts were proposed to be filled by selection in a new way. In this respect, I have been directed to state that after due deliberations by the Government, the Governor, Sir, has granted approval for changing the designation of the posts of Block Coordinator, Assistant Block Coordinator and Cluster Resource Coordinators, created under District Primary Education Program-III and Basic Education Project as Block Coordinator, Block Resource Person (B.R.P.) and Cluster Resource Person (C.R.P.) respectively; and for determining following selection process in a new way on the vacant posts.
1. Application:- Information about vacant posts of Block Coordinator, Block Resource Person and Cluster Resource Person would be made available to State Council of Education, Research and Training (S.C.E.R.T.), Uttarakhand by every District Project Officer and accordingly valid applications would be invited by the S.C.E.R.T. by advertising a notification. For this purpose, notification would be issued in at least two daily news papers. For each post, separate application would be needed. Proforma of the application would be determined by the S.C.E.R.T. 12
2. Application Fee: ...............................
3. Selection Committee:- Entire responsibility of selection of Block Coordinator, Block Resource Person and Cluster Resource Persons would be of the committee constituted by the S.C.E.R.T. For written examination, scrutiny of application forms, evaluation of written examination and declaration of result and other performance would be carried out in the supervision of the committee. Selection committee would be constituted in the following way:
Sr. Particulars of Members Designation no.
01 Director, Academic Research Chairman and Training, Uttarakhand.
02 Senior most Principal, DIET. Member 03 Additional Director, SCERT Member 04 Senior Chief Education Member Officer, as nominated by Director, S.C.E.R.T. 05 Senior District Education Member Officer (Basic)/District Project Officer, Sarva Shiksha Abhiyan as nominated by Director, S.C.E.R.T. (representative of Scheduled caste /Scheduled Tribe) 06 One Oficer/Expert as Member nominated by State Project Director.
5. Qualification: as prescribed ...................
..................................................................... ..................................................................... .......................................................
6. Age Limit: For deployment on the said posts, the maximum age of the candidate would be 50 years as on 01 April of the concerned year.13
7. Selection Process: Examinations would be conducted by the S.C.E.R.T on one and the same day (Sunday) in all the districts at the fixed time initially at the DIET or at some other comfortable place, if applications are more in numbers. For examinations, 3 different set of examination papers would be prepared by the S.C.E.R.T. Selection procedure would be as under:
1- Selection of candidate on the posts of B.R.C. Coordinator, Block Resource Person and Cluster Resource Person would be made on the basis of merit list as against vacant advertised posts, as per the provision made in Para.-2, based on (a) marks obtained in written examinations and (b) training ability and efficiency (merit) exposed by the experience of project works in the elementary education, by applying prescribed multiplier.
2- Marks and Multiplier for Selection:
(a) Written examinations: written examinations would be based on objective type of multiple questions. For written examinations, there would be question paper of 2 hours, having the following two parts:
Part-I:- 75 Marks: (Based on Academic expression, analytical arguing capacity and General knowledge) Part-2:- 75 Marks: (Questions relating to Hindi, English, Mathematics, Science, General study)
(b) Training ability: For training ability, marks would be determined in the following manner:
Sr. no. Name of Fixed multiplier
examinations
01 M.Ed. 05 Marks
02 P.H.D. 05 Marks
(c) Experience of working in primary Education Project:
For one year 01 marks, maximum 03 marks.
8-Merit List: A list of selected candidates, would be prepared by S.C.E.R.T, on the basis of marks obtained in written examinations and training qualifications and 14 marks obtained in the merit list; and allotment of posting place of the candidate would be made as per the preference given by the candidate in his application form, and as per the serial of merit, as also as per the counseling, and the allotment list would be made available to the District Education Officer (Basic)/District Project Officer, Sarva Shiksha Abhiyan. Order would be issued by the District Education Officer (Basic)/District Project Officer Sarva Shiksha Abhiyan, after having obtained approval from Chief Education Officer, for deploying the selected candidates on the vacant posts of B.R.C. Coordinator, Block Resource Person and Cluster Resource Person. Merit list would remain effective till 31st March of the concerned year and selection would also be made on the posts become vacant till 31st March.
9-Deployment: The selected candidates would be provided posting on the post of B.R.C. Coordinator, Block Resource Person and Cluster Resource Person, on the following conditions:
• After selection, the B.R.C. Coordinator, Block Resource Person and Cluster Resource Person, would be posted initially for a period of one year, which would be considered for extension on the basis of annual assessment.
• Drawing and disbursement of salary of the persons posted on the post of B.R.C. Coordinator, Block Resource Person and Cluster Resource Person, created under Sarva Shiksha Abhiyan, for the period of the project, would be made from the Sarva Shiksha Abhiyan; and drawing and disbursement of salary of the employees, posted on the posts created by the State Government, would be made by the State Government. Any other type of additional benefits, would not be payable to these employees.
• In the case of work and performance of B.R.C. Coordinator, Block Resource Person and Cluster Resource Person not found to be satisfactory, he can be reverted to his original post at any time on the recommendation of the State Project Director, Sarva Shiksha Abhiyan/Chief 15 Education Officer/ District Education Officer (Basic)/District Project Officer, Sarva Shiksha Abhiyan/Principal, DIET.
• On joining of the new B.R.C. Coordinator, Block Resource Person and Cluster Resource Person, the tenure of Coordinators posted on arrangement from before, would automatically come to an end.
• The selected B.R.C. Coordinator, Block Resource Person and Cluster Resource Person would initially be kept on probation for a period of one year. Every year in the month of February, performance of every Coordinator/resource person would be assessed by the committee constituted at district level and till the end of the month of March the result of such assessment would be collected. Thereafter, in the first week of April, either the service of the Coordinator/resource person would be extended or he would be returned to his original post on the basis of recommendation of the said committee. • The persons employed on the posts of B.R.C. Coordinator, Block Resource Person and Cluster Resource Person, created under B.E.P., D.P.E.P. and Sarva Shiksha Abhiyan, their lien would remain in their original department.
• In case, a separate cadre is made in future, for the post of B.R.C. Coordinator/B.R.P. or C.R.P., and in case regular appointments are made on such cadre posts, the B.R.C. Coordinator/B.R.P. and C.R.P., would be reverted to their original posts.
• The Govt. orders issued earlier in respect of Block Coordinator (B.R.C.C.), Assistant- Coordinator (A.B.R.C.C.), Cluster Resource Coordinator (C.R.C.C.) and Block Resource Person/Cluster Resource person, shall be deemed to be amended to this extent.
Sd/-
(Manisha Panwar) Secretary"
16
9. This order came to be subsequently amended by order dated 01.08.2013. The same is also extracted as follows:
"Government Order No.-/xxiv/(1)2013-25/2006 From:
Om Prakash, Principal Secretary, Govt. of Uttarakhand.
To State Project Director, Board of Education for all, Uttarakhand, Nanoorkheda, Dehradun.
Education (Basic) Section-I Dehradun: dated 01August, 2013 Subject: Regarding selection of Block Resource Person (B.R.P.) and Cluster Resource Person (C.R.P.) against vacant posts, under Right to Education Act, 2009.
Sir, As regards above subject, please take reference of your letter no.-R.P.N./646/B.R.P.-C.R.P./2013-14 dated 03.06.2013, by which proposal has been made available to partly amend Govt. order no.226/xxiv/(1)2013-25/2006 dated 05 February 2013, relating to selection process, on the vacant posts of Block Resource Person (B.R.P.) and Cluster Resource Person (C.R.P.).
I have been directed to state in this respect that on due deliberations by the Government, the Governor, Sir, has been pleased to determine following selection process by amendment in place of the selection process determined by the Govt. order no. 226/xxiv/(1)2013- 25/2006 dated 05 February 2013, for making selection on the vacant posts of Block Resource Person (B.R.P.) and 17 Cluster Resource Person (C.R.P.), under the scheme of Sarva Shiksha Abhiyan:-
No. of posts:- Under Sarva Shiksha Abhiyan-R.T.I., description of posts are as under:
Block Resource Person (B.R.P).:- In each Development Block Resource Centre, 3 posts subject wise-1. Language (Hindi/English) 2. Maths./Schience 3. Social Subject. Total nos. of posts-285.
Cluster Resource Person (C.R.P.):- In each Cluster Resource Centre-01 post.
Total nos. of posts-994.
2. Application................as prescribed.
3. Application fee...........as prescribed
4. Selection Committee:- The following Section Committee will be constituted, for conducting examinations and declaring results:
Sr. Particulars of Members Designation No. 01 Director, Academic Research and Chairman Training, Uttarakhand 02 Senior most Principal, DIET. Member 03 Additional Director SCERT Member 04 Senior Chief Education Officer, as Member nominated by Director, Academic Research and Training, Uttarakhand.
05 Senior District Education Member Officer/District Project Officer, Sarva Shiksha Abhiyan (representative of Scheduled Caste, Scheduled Tribe), as nominated by Director, Academic Research and Training, Uttarakhand.
06 01 Officer/Expert as nominated by Member State Project Director, Sarva Shiksha Abhiyan, Uttarakhand.
5. Qualification : as prescribed.
18
6. Age Limit:- For deployment on the said posts, the maximum age would be 50 years as on 01 April of the year.
7. Selection Process : Director, Academic Research and Training, Uttarakhand will conduct examinations on one and the same day (Sunday) in all the districts at the fixed time at the DIET or at some comfortable place, if applications are more in numbers. For examinations, 3 different set of examination papers would be prepared by the Director, Academic Research and Training, Uttarakhand. Selection procedure would be as under:
1- Selection of candidates on the posts of Block Resource Person and Cluster Resource Person:
(a) Marks of written examinations. (b) Marks of training qualifications (c) Total marks obtained on the basis of experience of project works in primary education and on the basis of expressed ability (merit), as per the merit list, as against the advertised posts.
2- Marks and Multiplier for Selection:
(a) Written examinations: written examinations would be based on objective type of multiple questions. For written examinations, there would be question paper of 2 hours, having the following two parts:
Part-I:- 75 Marks: (Based on Academic expression, analytical arguing capacity, computer efficiency (M.S. office), Communication skill and General knowledge) Part-2:- 75 Marks: (Questions relating to Hindi, English, Mathematics, Science, General study)
(b) Training ability: For training ability, marks would be determined in the following manner:
Sr. no. Name of Fixed Marks
examinations
01 M.Ed. 05 Marks
19
02 P.H.D. 05 Marks
(c) Experience of working in primary Education Project: For one year 01 marks, maximum 05 marks.
8- Merit List: Merit list of the candidates would be prepared on the basis of marks obtained in written examinations, training qualification and experience of working in project. On making allotment of posting place of the candidate, as per the preference no. given by the candidate in application form, and as per the serial of merit, a list would be made available to the District Education Officer (Basic)/District Project Officer, Sarva Shiksha Abhiyan, of the district. Order would be issued by the District Education Officer (Basic)/District Project Officer, Sarva Shiksha Abhiyan, after having obtained approval from Chief Education Officer, for deploying the selected candidates on the post of Block Resource Person and Cluster Resource Person. Merit list would remain effective till 31st March of the concerned year.
9- Deployment: The selected candidates would be provided posting on the post of Block Resource Person and Cluster Resource Person, on the following conditions:
• After selection, the Block Resource Person and Cluster Resource Person, would be posted initially for a period of one year, which would be considered for extension on the basis of annual assessment.
• Drawing and disbursement of salary of the persons posted on the post of Block Resource Person and Cluster Resource Person, created under Sarva Shiksha Abhiyan, for the period of the project, would be made from the Sarva Shiksha Abhiyan; and drawing and disbursement of salary of the resource persons, posted on the posts created by the State Government, would be made by the State 20 Government. Any other type of additional benefits, would not be payable to these resource persons.
• In the case of work and performance of Block Resource Person and Cluster Resource Person not found to be satisfactory/in the interest of the project, he can be returned to his original post at any time by the State Project Director, on the recommendation/approval of the Chief Education Officer, District Education Officer (Basic)/District Project Officer, Sarva Shiksha Abhiyan/Principal, DIET.
• The selected Block Resource Person and Cluster Resource Person would initially be kept on probation for a period of one year. Every year in the month of February, performance of every resource person would be assessed by the committee constituted at district level and till the end of the month of March the result of such assessment would be collected. Thereafter, in the first week of April, either the service of the resource person would be extended or he would be returned to his original post on the basis of recommendation of the said committee.
• The person posted as Block Resource Person and Cluster Resource Person, under Sarva Shiksha Abhiyan-R.T.I., their lien would remain in their original department.
• In case, a separate cadre is made in future, for the post of B.R.P. or C.R.P., and in the circumstances of regular appointment made on such cadre posts, the B.R.P. or C.R.P., would be returned to their original posts.
• The Govt. orders issued earlier in respect of Block Coordinators (B.R.C.C.) and Assistant Block Coordinator (A.B.R.C.C.), Cluster Resource Coordinator (C.R.C.C.) and Block Resource 21 person/Cluster Resource person, shall be deemed to be amended to this extent.
• The B.R.C. and C.R.C. appointed earlier may also give application. The B.R.C./C.R.C. whose selection does fall under the said Govt. order, they would be repatriated to their original posts.
Sd/-
(Om Prakash) Principal Secretary
10. Finally, pursuant to all this, Annexure No. 6 to appeal advertisement dated 27.06.2014 came to be issued. It was this advertisement which was called in question by the appellants/writ petitioners, who are represented by Mr. C.D. Bahuguna, learned senior counsel along with Mr. Anup Kumar Verma, learned counsel.
11. The case set up by the writ petitioner in the said batch of writ petitions was essentially as follows:
They were persons, who were selected under the order dated 28.07.2003. They underwent the selection process and came out successful. They were discharging the duties satisfactorily. They were not put on notice about any blemish on their part reflecting on their performance. It was contended, as evident from the prayer in the writ petition, that they were permanently appointed and they cannot, therefore, be repatriated back. It is in the said batch of writ petitions that the learned Single Judge proceeded to hold as follows:
"6. It is, however, true that the petitioners have been appointed after facing a selection process where Selection Committee was constituted as per the 22 Government Order dated 19.03.2003, which was a District Level Committee and the petitioners had faced a written examination and group test and after its evaluation they were finally selected. It is therefore wrong to revert the petitioners back to their original posts and ask them to face a fresh selection process as this actually has no nexus with the object sought to be achieved.
7. In its rebuttal the Government has said that earlier though there was a selection process but now considering the utility of these posts a more vigorous as well as transparent process is in place. The Committee will be chaired by a High State Level Authority instead of a District Level Officer.
8. Be that as it may, this itself cannot be a ground for discarding such persons who have already faced the selection process. The present selection process may be a better selection process but the fact still remains that the petitioners who have already faced a selection process and after successfully qualifying a due process were so appointed as CRCC or BRCC, hence their appointments as CRCC or BRCC cannot be said to be arbitrary, illegal or in violation of law.
9. At the same time, the fact remains that the petitioners' lien remains, as that of teachers, be that in Elementary Schools or in the Higher Secondary Schools, as the case might be. Their appointment as CRCC or BRCC is only on deputation.
10. The reliance of the petitioners on a Government Order dated 31.03.2008 wherein the Government has stated that their deputation would be treated as posting (as CRCC or BRCC as the case might be) is of no help to the petitioners as effectively the appointments of the petitioners can be nothing but on a deputation. In fact, this Court in a different case in Dharmendra Rawat & others Vs State of Uttarakhand & others (WPSS No. 1732 of 2007 decided on 26.07.2011) has already discarded the 23 view of the respondents that they were not working as deputationist. Actually they have been working on deputation and hence liable to a higher pay scale as was advertised by the authority. This is an order which has been upheld in the Division Bench of this Court, though the matter is pending before the Hon'ble Apex Court, as informed by Mr. Bhagwat Mehra, learned counsel for the petitioner.
11. It has not been categorically stated in its counter affidavit that the petitioners have been working as a deputationist, but learned Chief Standing Counsel for the State fairly admits that the posting of the petitioners as CRCC or BRCC, as the case might be, nothing more than a deputation. This Court also is also of the view that the status of the petitioners will be that of a deputationist.
12. In view of that the petitioners cannot claim a right to be absorbed on the post, more so on the posts which are not permanent posts and only project posts. At the same time though this Court feels that since the petitioners have already faced a regular selection process, as such, even though a new selection process has come it should not itself be a cause for repatriating the petitioners to their original posts. The final determination to the dispute here would be that merely because a new selection process has now come in place to an earlier selection process the petitioners shall not be repatriated to their parent department or posts, as a matter of course. Yet the government or the appointing authority can always repatriate the petitioners to their parent department, if they so choose, as the status of the petitioners remains that of a deputationist.
13. Consequently, with the above determination, all the writ petitions stands disposed of and the interim protection provided to the petitioners, though on different dates, are also vacated."24
It was also their contention that it is only for the vacant posts that the advertisement was issued and when they were working on the said post, the said posts cannot be said to be vacant and, therefore, they cannot be touched.
12. As far as the other judgment is concerned, which is subject matter of the two appeals filed, where Mr. Yogesh Pacholia, learned counsel appears for the appellants, as noticed, it was rendered by another learned Single Judge of this Court on the complaint in the writ petition, which was filed by a person, who applied pursuant to the advertisement, which was the subject matter of the other writ petitions and the learned Single Judge has directed to carry the proceedings further after quashing the order, which was impugned therein. At this juncture, it is necessary to refer to the said order. The English translation of the same has been made available and it reads as follows:
"Uttarakhand Government Upper Chief Secretary Commissioner Branch Agriculture Production School Education Department No.1028/A.Nu.No./Vi.Shi./2016 Dehradun: dated September, 2016 Office order The judgment passed by Hon'ble High Court of Uttarakhand in Writ Petition No.281/2016 (S/S) "Manoj Kishore Bahuguna & ors. Vs. State of Uttarkhand" was considered & discussed in detail. The operative portion of the aforesaid judgment is mentioned below:-
"In case petitioners have been selected they shall be given appointed on the posts of Block Resource Person (BRP) and Cluster Resource Person (CRP). In case 25 Government does not give appointment to the petitioners, the reasons must be assigned therein."
In order to that, the order passed by this Hon'ble Court on 27.10.2014 in writ petition no.1204/2014(S/S), 1206/2014 (S/S), 1207/2014(S/S), 1209/2014(S/S), 1235/2014(S/S), 1234/2014(S/S), 1233/2014(S/S).
1232/2014 1231/2014 1229/2014 1228/2014 1233/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1226/2014 1225/2014 1224/2014 1236/2014 1227/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1247/2014 1245/2014 1242/2014 1241/2014 1246/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1240/2014 1204/2014 1239/2014 1260/2014 1245/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1272/2014 1270/2014 1269/2014 1280/2014 1259/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1284/2014 1282/2014 1283/2014 1278/2014 1285/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1247/2014 1345/2014 1344/2014 1243/2014 1346/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1340/2014 1339/2014 1338/2014 1237/2014 1342/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1370/2014 1375/2014 1460/2014 1456/2014 1369/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1458/2014 1459/2014 1469/2014 1468/2014 1457/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1464/2014 1476/2014 1471/2014 1487/2014 1466/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1494/2014 1493/2014 1500/2014 1501/2014 1479/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1498/2014 1504/2014 1506/2014 1521/2014 1499/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1518/2014 1517/2014 1512/2014 1519/2014 1510/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1617/2014 1616/2014 1621/2014 1630/2014 1614/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1632/2014 1665/2014 1663/2014 1658/2014 1433/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1660/2014 1669/2014 1672/2014 1671/2014 1452/2014
(S/S) (S/S) (S/S) (S/S) (S/S)
1657/2014 1670/2014 1668/2014 1667/2014 1659/2014
26
(S/S) (S/S) (S/S) (S/S) (S/S)
1666/2014 1662/2014 1653/2014 1654/2014 1664/2014 (S/S) (S/S) (S/S) (S/S) (S/S) 1656/2014 (S/S) and 1677 (S/S) is also considered. The operative portion of aforesaid order is reproduced hereinunder:-
"In view of that the petitioners cannot claim a right to be absorbed on the post, more so on the posts which are not permanent posts and only project posts. At the same time though this Court feels that since the petitioners have already faced a regular selection process, as such even though a new selection process has come it should itself be a cause for repatriating the petitioners to their original posts. The final determination to the dispute here would be that merely because a new selection process has come in place to an earlier selection process the petitioners shall not be repatriated to their parent department or posts, as a matter of course. Yet the Government or the appointing authority can always repatriate the petitioners to their parent department, if they so choose, as the status of the petitioners remains that of a deputationist."
Considering the two different directions issued by this Hon'ble Court it is resolved that it is not possible to remove the persons working at present as Block Resource Person (BRC) and Cluster Resource Person (CRC) in respect of the order dated 27.10.2014 passed by Hon'ble High Court only because new incumbents have been selected under new selection process. It is pointed out that it is not a fresh selection process and newly selected candidate will also come on Deputation in the aforesaid post. Like wise the old incumbents, those who are working on the aforesaid post, they were also on deputation. This fact is mentioned in the order dated 27.10.2014 passed by this Hon'ble Court, that these incumbents are also working on the aforesaid post are also selected under a selection process.
27
In the aforesaid circumstances it is decided to appoint the newly selected candidates, in order to their merit, against the vacant psots. In the matter of Previously selected C.R.C./B.R.C. the decision shall be taken on the case to basis. The posts which shall be vacant, against those posts, the appointment shall be made through newly selected candidates.
Sd/-
(Dr. Ranbir Singh) Upper Chief Secretary, School Education"
13. We heard Mr. C.D. Bahuguna, learned senior counsel assisted by Mr. Anup Kumar Verma, learned counsel on behalf of the appellants in the Appeals filed against the judgment passed in the batch of writ petitions, Mr. Yogesh Pacholia, learned counsel on behalf of the appellants in other two appeals and Mr. Kishore Kumar, learned counsel for the writ petitioners in SPA No. 347 of 2017 and SPA No. 420 of 2017 besides Mr. C.S. Rawat, learned Additional Chief Standing Counsel.
14. Mr. C.D. Bahuguna, learned senior counsel appearing for the appellants would submit that the appellants are persons, who were selected after undergoing the selection process. He refers to the order dated 28.07.2003. No doubt, he would point out that in the order of appointment of the appellants, it was mentioned that they would be on deputation, but he points out that in the year 2008, an order was passed by which the word 'deputation' was supplanted by the word 'deployment'. This was done by order dated 31.03.2008. He would further submit 28 that the Government Orders dated 05.02.2013 and also 01.08.2013 speaks about filling up of vacant posts. He would submit that the appellants, whom he represents, were the persons who were already selected under the earlier Government Orders after undergoing proper selection process.
Their performance was not found to be unsatisfactory in reference to the Government Orders dated 05.02.2013 and 01.08.2013. It is submitted that without there being unsatisfactory service, they could not be repatriated. Even under the earlier order dated 28.07.2003, under which they were admittedly appointed or rather deployed, if the performance was found to be unsatisfactory, they could be repatriated. There is violation of principles of natural justice.
Appellants were not given an opportunity to apply pursuant to the new advertisement.
15. Per contra, Mr. C.S. Rawat, learned Additional Chief Standing Counsel would point out that the appellants were appointed under the earlier Sarva Shiksha Abhiyan Scheme and now the Government has decided to go in for revamping this system and they have provided for the post of Block Resource Person (BRC) and Cluster Resource Person (CRC).
The appellants could also apply. There is no legal right as claimed.
16. Mr. Yogesh Pacholia, learned counsel for the appellants in the two appeals, which have been filed with leave granted by this Court are persons, who like the appellants in the other 29 cases were selected as Coordinators under the 2003 Government Order. The learned Single Judge proceeded to allow the writ petitions filed by the persons who had applied pursuant to the advertisement, which was the subject matter in the earlier writ petitions. Their complaint was that the selection was not proceeded with. The learned Single Judge took the view that the selection should be proceeded with and the learned Single Judge also quashed the impugned order. He would raise the following objections to the judgment:
He would point out that the advertisement contemplates filling up of a vacant post. He does not dispute that the lien of the appellants is in the parent department. He points out that though in the earlier order, by which they were appointed, they were shown to be on deputation, but they were not being granted deputation allowance. Subsequently, the word 'deputation' was supplanted by another word 'inLFkkiuk'. His interpretation of the said word, which we must remind ourselves has been referred to as 'deployment' by Mr. C.D. Bahuguna learned senior counsel for the appellants in the other batch of appeals, is that it means posting.
He would submit that there is no post of Block Resource Person and Cluster Resource Person in the Rules made under the Right of Children to Free and Compulsory Education Act, 2009 by the Uttarakhand Government, and without changing the concept, as embedded in the statutory Rules, they cannot create the post of Block Resource Person and Cluster Resource Person. He would further contend that the writ petitioners (the persons who had applied pursuant to the advertisement issued) 30 had no legal right. In this regard, he referred to the judgment of the Apex Court in the case of Shankarsan Dash Vs. Union of India reported in (1991) 3 SCC 47 besides the judgment in the case of S.S. Balu and Another Vs. State of Kerala and Others reported in (2009) 2 SCC 479. He would further contend that there must be reasonableness in the action of the Government.
A temporary person cannot be replaced by another temporary appointee. In this regard, he referred to the judgment of the Apex Court in the case of State of Haryana and others Vs. Piara Singh and others reported in (1992) 4 SCC 118.
17. We have set out all the relevant Government Orders, which have been brought to our notice. The following would appear to us the position of the appellants in relation to the Government Orders, which have been made available to us:
The appellants in the appeals filed by Mr. C.D. Bahuguna, learned Senior Counsel, appear were all undoubtedly selected as Coordinators (broadly speaking). They were selected under the specific Government Order dated 28.07.2003. Under the said Government Order, a Committee is constituted. This Committee was to consist of the Principal, DIET as the Chairman and the District Basic Education Officer, Senior Principal as nominated by the District Inspector of Schools of the concerned District, one representative as nominated by Additional Director, S.C.E.R.T. and a Senior Lecturer as nominated by the Principal, DIET were to be the other members of the selection committee. We have already referred to the selection process, which was to consist of written examination, 31 group discussion and interview. Contrast this to the Selection Committee constituted under the Government Order dated 05.02.2013. The selection was to be conducted by Committee constituted by the S.C.E.R.T. The scrutiny of application forms, evaluation of written examination and declaration of result and other performance was to be carried out under the supervision of the Committee. There were to be six members in contradiction to five members under the earlier Government Order. More importantly, the composition of the Committee was different. The Chairman was to be the Director, Academic Research and Training, Uttarakhand whereas, the Chairman of the Committee under the Government Order dated 28.07.2003 was the Principal, D.I.E.T. The other members under the new dispensation were the Senior most Principal, DIET; the Additional Director, S.C.E.R.T., whereas, under the earlier order, the Member nominated by the Additional Director was included. Besides these two members, the Committee was also to consist of the Senior Chief Education Officer nominated by the Director, S.C.E.R.T. Further, there was to be a Senior District Education Officer (Basic)/District Project Officer, Sarva Shiksha Abhiyan nominated by the Director, S.C.E.R.T. (representative of Scheduled Caste/Scheduled Tribe). The sixth member was to be one Officer/Expert as nominated by the State Project Director. The selection process was to consist of examination to be conducted by the S.C.E.R.T. on one and the same day in all the districts. The selection was to be done on the basis of the marks obtained in the written examination, training ability and 32 efficiency (merit) exposed by the experience of project works in the elementary education by applying prescribed multiplier.
Thereafter, the order provides for marks and multiplier for selection. The matter of assessing training ability is also provided and experience is also to be assessed on the basis of working in Primary Education Project as for one year 01 marks, subject to the maximum of 03 marks. Therefore, there is a qualitative difference in the selection procedure both in the composition of the selection committee and also the selection procedure. In this context, we must refer to the stand taken in the counter affidavit filed by the State. The relevant paragraph is extracted as follows:
"12. That the contents of para no. 15 & 16 are denied as erroneous and misleading. It is wrong to state here that the petitioner is duly appointed on the post of C.R.C. As stated above the posts of Cluster Resource Coordinator are Ex-cadre posts and its lien is remain with its sustentive post moreover said posts are not sanctioned in departmental structure. It is also pertinent to mention here that in accordance with the then prevailing situations the selection process of BRCs & CRCs were prescribed. But due to desired results were not obtained the Government of India, imaged to create the posts of Block Resource Persons & Cluster Resource Persons, which is in consolation with spirit of the Right of Children for Free and Compulsory Education Act 2009. Therefore, at point 7, 8.1 of Chapter VIII of the framework of Serva Shiksha Abhiyan it is mentioned that "The efforts made under SSA, through establishment of BRCS and CRCs has improved matters marginally, but the overall situation has remained essentially unchanged. As a result, functioning of schools has deteriorated and quality of the teaching learning process has shown no improvement. Improvement 33 of quality of education is a pre-requisite of successful implementation of the RTE Act."
18. It appears that the efforts made, according to the Government, under Sarva Shiksha Abhiyan through the establishment of the Coordinators did improve matters but the matters improved only marginally, and the overall situation remained essentially unchanged. The Government, apparently, took the view that the functioning of schools has deteriorated and the quality of the teaching learning process has shown no improvement. Improvement of quality of education was to be a prerequisite of the successful implementation of the Right of Children to Free and Compulsory Education Act. The Right of Children to Free and Compulsory Education Act was enacted in the year 2009. This followed the insertion of Article 21A in the Constitution of India making Elementary Education a fundamental right. It is in the context of the same, apparently, that the Government decided to issue order dated 05.02.2013 following order dated 01.08.2013. A perusal of the order dated 05.02.2013 would show that the Government decided to change the designation of the post of Block Coordinator/Assistant Coordinator and Cluster Resource Coordinators created under the District Primary Education Program-III and the Basic Education Project. The Governor gave approval for changing the designation of the posts of Block Coordinator, Assistant Block Coordinator and Cluster Resource Coordinators as Block Coordinator, Block Resource Person (B.R.P.) and Cluster Resource Person (C.R.P.). It is on the basis of the revamping of the posts and having regard to the vital role played by these 34 categories of persons that the Government has decided to go in for fresh selection by virtue of order dated 05.02.2013 under which, as we have noticed, a new selection regime was put in place. It is true, as contended by the learned Senior Counsel for the appellants, that the earlier Government Orders issued in respect of the Coordinators (to which the appellants belong) were deemed to be amended as provided in the order dated 05.02.2013. By the order dated 01.08.2013, the Government has, undoubtedly, gone for filling up the post of Block Resource Person and Cluster Resource Person in regard to the vacant posts. But in this regard, we must notice the exact number of posts which were to be filled up as has been indicated in the order dated 01.08.2013. In the said order, as we have noted, the total number of posts of Cluster Resource Person is shown as 994, whereas, 285 posts are shown in the category of Block Resource Person, making it a total of 1279.
19. At this juncture, it is also necessary to consider, what are the statements contained in the affidavit filed in Special Appeal No. 106 of 2016. The relevant paragraph of the said affidavit reads as follows:
"15. That pursuant to the aforesaid Government orders, the respondent no. 4 issued an advertisement on 27- 06-2014, a copy of which is enclosed and marked as Annexure-6 to this affidavit, to fill up all 1279 posts, sanctioned under the 'Sarva Shiksha Abhiyan' including about 400 posts, occupied by Block Resource Coordinator (B.R.C.) (now Block Coordinator), Assistant Block Resource Coordinator (A.B.R.C.) ( now B.R.P.) and Cluster Resource Coordinator (C.R.C.) (now C.R.P.) including the appellant. It was a shocking jerk for the appellant to 35 know that by the said advertisement, the post occupied by him other similarly situated persons, had also been advertised. The appellant and other similarly situated persons, having felt seriously prejudiced and adversely affected by the said advertisement, approached the Chief Minister of the State and apprised him about the adverse consequences, which the advertisement could ensue for the appellant and the similarly situated persons. The Chief Minister of the State was informed that about 400 persons are working as Block Resource Coordinator (B.R.C.), Assistant Block Resource Coordinator (A.B.R.C.) and Cluster Resource Persons (C.R.C.) in various Nyaya Panchayats and blocks of the State; and, therefore, there is no justification to re-advertise such posts, which are already occupied by the appellant and the similarly situated persons, after due selection. It was suggested that excluding 400 posts out of total 1279 sanctioned posts, remaining posts of Coordinators can be filled up."
20. Thus, it is quite clear that the appellants understood that 1279 posts are to be filled up; the posts occupied by them would also be filled up. No doubt, they refer to moving the Chief Minister and the Chief Minister taking the view that the fresh selection process need not be undertaken, but the fact of the matter is that the advertisement did go through. We have already noticed the judgment rendered by the learned Single Judge in the batch of writ petitions. The learned Single Judge did not quash the advertisement. The learned Single Judge, undoubtedly, noted the position of the appellants to be that of the deputationists.
36
21. Having set out the effect of the orders dated 28.07.2003 on the one hand and the orders dated 05.02.2013 and 01.08.2013, the following conclusion can safely be reached:
Persons who were selected earlier under the Government order dated 28.07.2003 continue to have the lien in the parent department, namely, the Education Department wherein they were selected and appointed as Teachers. It is true that in the order dated 28.07.2003, it is provided that if the service is found to be unsatisfactory, they could be repatriated, but it may not be correct to say that otherwise, the Government has no right to repatriate them. Having regard to the nature of their appointment as Coordinators, call it deployment or deputation, the tenure cannot detract from the power available to the Government to repatriate them to the parent department. The case of Mr. Yogesh Pacholia, learned counsel for the appellants in other two appeals is that it is not deployment also, what is contemplated under order dated 31.03.2008, which we have extracted, but it is posting. Even if it is posting, the lien of the appellants would continue to be in the parent department. A person cannot have lien on two posts. The basis for the appellants, approaching this Court against the advertisement, as evident from the first prayer, is that they have been permanently absorbed. In fact, Mr. C.D. Bahuguna, learned senior counsel fairly submitted that he cannot substantiate that the appellants have been permanently absorbed or that there were permanent posts. The appellants are persons, who were selected as Coordinators under the earlier Sarva Shiksha Abhiyan. Their tenure was precarious in law, as they could 37 always be repatriated back, if it is found that their service is unsatisfactory. Undoubtedly, it is a condition in the order but that does not take away the power of the Government, if it is found necessary to repatriate them to the parent department on other reasonable grounds.
22. In this case, the reasonable ground appears to emerge in the form of the decision taken to re-designate the post as Block Resource Person and Cluster Resource Person and far more importantly to put in place a new mechanism for selecting those persons which, we have already elaborately adverted to. To improve the quality of the Elementary Education and having regard to the pivotal role played by the resource persons, as they are called, the Government felt it necessary to go in for a fresh selection. In this connection it is relevant to notice that there was an earlier litigation, which incidentally came before the very same learned Judge in the form of five writ petitions and that was disposed of as follows:
"All these writ petitions pertain to appointment on the posts of Coordinator, Block Resource Center and Coordinator, Cluster Resource Center, which are the posts meant to monitor and supervise the work of elementary education, under the Scheme known as "Sarv Shiksha Abhiyan". Earlier there were three categories of posts. At the Panchayat level, it is known as "Cluster Resource Centre", at Block level it is known as "Block Resource Centre" and "Additional Block Resource Center". These offices were generally manned by the teachers who were teaching in elementary or senior elementary schools.38
2. Since these posts carry some extra remuneration, other than the pay which such teachers were getting, these posts much remained sought after amongst such teachers. All the same, these appointments earlier were not being made under any procedure or rules and there was an arbitrariness writ large in the process. There was a pick and chose in the matter, which justifiably caused heartburning amongst teachers, who sought removal of such persons who were appointed purely for arbitrary reasons. Thus, the present matter relate to one such appointment.
3. Now in the supplementary counter affidavit which has been filed by the State, it has been mentioned that a Government Order dated 1st August, 2013 has been issued, in which the Government has now evolved a procedure for selection and appointment on these posts.
4. The State Government firstly has reduced this system from three stages to two stages. This has now been made to two levels, one at Panchayat level and the second is at the Block level which are known as "Block Resource Center" and "Cluster Resource Center" and the charge of these Centers will be given to "Block Resource Person" and "Cluster Resource Person"
respectively. For such posts, the applications can be made by such eligible teachers who are teaching in Government Primary schools and Government Junior High Schools with a minimum of 5 years experience etc., for which first of all the advertisement has to be made in two news papers, which have wide circulation in the area, and second, they have to pass written examination of two papers with 75 marks each. Apart from this, there are some additional marks for candidates having M.Ed. and Ph.D. degree. There is hence a fairness in the process and at least a procedure is in place under which such appointments are to be made.
39
5. The learned counsels for the petitioners contend that since now a procedure has come, they have no grievance and that they shall apply for these posts when vacancies are advertised.
6. In view thereof, all the writ petitions are disposed of with the direction to the State Government to immediately initiate the process to make selection of on such posts, as per Government Order dated 1st August, 2013 promptly without any further delay.
7. Till such selection and appointment are made, such persons who are already working, shall continue to work. However, they have absolutely no right beyond the period when such selection and appointments are made.
8. No order as to costs."
23. It is, thereafter, that the Government has, apparently, brought out the advertisement. As we have noted in paragraph no. 7 of the judgment, the learned Single Judge made it clear that the persons who are already working, shall continue to work and would have no right beyond the time till such selection and appointments are made. It is after this judgment was rendered that the judgment impugned in the batch of cases was rendered i.e. impugned judgment dated 27.10.2014.
24. As far as the contention of Mr. C.D. Bahuguna, learned senior counsel for the appellants and also Mr. Yogesh Pacholia, learned counsel for the appellants in other two appeals that what is contemplated is the vacant posts and the concept of vacant posts cannot square with a situation where 40 the posts are held by the appellants, who were selected under the earlier Government Orders, we are of the view that it can only be reconciled in the following way:
By the order dated 01.08.2013, the Government decided to fill up 1279 posts. Even according to the appellants, the said posts would take in the posts held by them. The order dated 01.08.2013 also specifically contemplates that the persons like the appellants could apply pursuant to the advertisement to be issued to fill up the posts of Block Resource Person and Cluster Resource Person. As pointed out by Mr. Kishore Kumar, learned counsel appearing for the respondent nos. 4 to 7 in the two appeals filed by Mr. Yogesh Pacholia, specifically the advertisement in July, 2014 provides that persons already working as Coordinators could apply and what is more, they are given two marks per year of experience they have, subject to the maximum of 10 marks.
There is no reference to right to the existing Coordinators to apply, no doubt, in the advertisement dated 27.06.2014.
However, subsequently, as pointed out on behalf of the writ petitioners in the appeals filed by Mr. Yogesh Pacholia, learned counsel that a condition was inserted, giving right to the persons working as Coordinators, to apply and also giving marks for the years of experience they have.
It is, in this regard, apposite to note that in the order dated 01.08.2013, it is specifically provided that BRC and CRC appointed earlier may also give applications.
Furthermore, it is most important to notice in the same last clause that BRC and CRC, whose selection does not fall 41 under the Government Order, would be repatriated to their earlier post. Therefore, we have to note the following three circumstances:
Firstly, 1279 posts, including the posts held by the parties were advertised. Secondly, this is done on the basis that these persons could also apply for selection as Block Resource Person and Cluster Resource Person. It is further provided that BRC's and CRC's, whose selection does not fall under the said Government Order, would be repatriated to their original post. Therefore, we would come to the conclusion that though the advertisement referred to the word 'vacant post', it is to be understood as including the posts held by the appellants and they were given the liberty to apply and the understanding was that all the posts would be filled up in due course by appointing Block Resource Persons and Cluster Resource Persons under the new regime sought to put in place by order dated 05.02.2013 and 01.08.2013, subsequently by order dated 31.03.2014.
25. We have no hesitation in rejecting the contention raised by Mr. C.D. Bahuguna, learned senior counsel for the appellants that unless appellants' performance was found to be unsatisfactory, they could not be repatriated. May be that is a ground, but that is not the only ground, as we have already found that being on deputation or deployment, the appellants could always be repatriated back. The repatriation of the appellants was being under the order dated 01.08.2013. It is most relevant to notice that the appellants have not thought it fit to challenge the order dated 01.08.2013. It is 42 pursuant to the said order, the impugned advertisement was issued. The advertisement was based on the order dated 01.08.2013, which in turn is not challenged.
26. We also repel the contention based on principles of natural justice. Principles of natural justice are equitable principles evolved by the Courts. The concept of principles of natural justice is that a person should receive fair treatment by the State and public authorities. Principle of fairness would come into play when a right or an interest or a legitimate expectation is sought to be taken away. In this case, it is worthwhile to remind ourselves that appellants are not being deprived of any right on the basis that their performance was not satisfactory as such. In other words, there was a feeling that though generally the performance of the Coordinators has contributed to the improvement of the Elementary Education, a more perfect system was required. This did not involve casting aspersions on any of the appellants. What is contemplated was the revamping of the whole system. Revamping was sought to be done by putting in place a new system contemplated by having a new selection committee and a different procedure of selection. In such a situation, we are unable to understand, how the principles of natural justice, with notice to each party or hearing each party is contemplated. Therefore, we repel the said contention.
27. We may, at this juncture, also deal with the arguments of Mr. Yogesh Pacholia that the posts of Block Resource 43 Person and Cluster Resource Person do not find reflection in the Rules. It may be true that the posts of Block Resource Person and Cluster Resource Person do not find reflection in the Rules made under the Right to Education Act by the State of Uttarakhand, but we have noticed that the Governor has given approval for the purpose of re-designating the earlier post of Coordinators as Resource Persons, namely, Block Resource Persons and Cluster Resource Persons. May be an amendment in the Rules may follow, but that may not take away the right of the Government to put in place the re- designation as done. It is also necessary to notice that the appellants represented by Mr. Yogesh Pacholia, learned counsel have not challenged the order dated 05.02.2013 and the order dated 01.08.2013, by which the re-designation has taken place. The orders which are passed cannot be ignored by anyone. Even, if an order is a void order, a person cannot ignore it and he must take steps to get it invalidated. In this regard, we may notice the judgment of this Court in the case of State of Uttarakhand and another Vs. Keshavanand Jhaldiyal reported in 2014 (2) U.D., 485. The relevant paragraphs of the said judgment read as follows:
"55. It is settled law that even a decision or an order, which may be void as being ultra vires must be questioned and its voidness either got declared or suitable other reliefs sought in this regard. We may refer to the decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Gurdev Singh reported in (1991) 4 SCC Page 1, wherein the Apex Court has held as follows:
"8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body 44 or court. In Smith v. East Elloe Rural District Council Lord Radcliffe observed: (All ER p. 871) "An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
9. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity" is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court. Prof. Wade sums up these principles:
"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another."
56. This principle has been followed also in subsequent decisions and it is sufficient to notice Krishnadevi Malchand Kamathia and others Vs. Bombay Environmental Action Group and others reported in (2011) 3 SCC 363, wherein the Court, inter alia, held as follows:-
"Even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. Whether an order is valid or void, cannot be determined by the parties. For setting aside such an 45 order, even if void, the party has to approach the appropriate forum.
Once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
Even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."
28. Admittedly, even according to Mr. Yogesh Pacholia, learned counsel for the appellants in the two appeals, the lien of the appellants lie with the parent department. We would think that the appellants would not be justified by laying store on the judgment in the case of State of Haryana and others Vs. Piara Singh and others reported in (1992) 4 SCC 118. No doubt, the Apex Court has held, inter alia, that one ad-hoc appointee cannot be replaced by another ad-hoc appointee and an ad-hoc appointee can only be replaced by a regular appointee. But the facts of this case would show that there is no scope of applying this principle. In this case, the appellants were persons, who were selected on deputation basis, originally, at any rate, under 46 the order dated 28.07.2003. Apparently, when an issue was raised regarding the non-payment of deputation allowance, the Government brought out order dated 31.03.2008, where they say that the word mentioned as 'deputation' may be read as 'deployment' according to Mr. C.D. Bahuguna, learned senior counsel for the appellants and posting according to Mr. Yogesh Pacholia, learned counsel. Subsequently, in the year 2013, apparently, in the wake of Article 21A inserted in the Constitution of India and the enactment of Right to Education Act in the year 2009, a need was felt to revamp the education system, particularly at the elementary level. It was in the said context that the order dated 05.02.2013 and order dated 01.08.2013 were issued, which we have noticed. They contemplated a completely different system of selection and also the selection was contemplated against the re-designated posts of Block Resource Persons and Cluster Resource Persons. The existing Coordinators, to which category the appellants belong, were also given the liberty to apply for the selection, as evident from order dated 01.08.2013. If a person is on deputation, we would think that there is no scope for applying the principle that an ad-hoc appointee can be replaced only by a regular appointee and not by another ad-hoc appointee. This is not a case, where an ad-hoc appointee is replaced by another ad-hoc appointee. This is a case where persons selected on deputation, who were later on treated to be on deployment, are sought to be, in the wake of the re-designation of the posts with a new system of selection being put in place, replaced under the said mechanism by persons who are selected. Even the 47 appellants could apply (in fact, it is brought to our notice also that some of the Coordinators did apply but were unsuccessful).
29. We may notice, in this case, one pertinent aspect. The Government has not filed any appeal against the judgment. The resultant position is that though the advertisement, which was called in question has not been quashed, we are confronted with a situation where the learned Single Judge has, on the one hand, held that it was a case of deputation and the appellants could be repatriated on a case to case basis and the learned Single Judge has also not interfered with the advertisement based on the orders dated 05.02.2013, 01.08.2013 and 31.03.2014. As far as the appellants represented by Mr. C.D. Bahuguna, learned senior counsel are concerned, we see no reason at all to interfere with the judgment of the learned Single Judge. In the absence of an appeal by the State, we are not inclined, in this case, to carry the matter to the logical conclusion and to interfere with the judgment passed by the learned Single Judge as such.
30. Hence, the appeals filed by the writ petitioners, which we have already referred to will stand dismissed, without there being any order as to cost.
31. There are three other appeals, filed with leave by persons, who are in the similar position as the appellants but who were not the writ petitioners. These are SPA No. 59 of 2016, SPA No. 48 60 of 2016 and SPA No. 67 of 2016. As far as these three appeals are concerned, there is another reason why no relief can be granted to the appellants therein. The appellants therein are the persons, who have not challenged the advertisement, though it is clear that they understood the position to be that under the advertisement, the posts held by them also have been advertised; yet, they have not thought it fit to challenge the advertisement. Therefore, no relief can be granted in the appeals filed by them. We would also think that there is no merit otherwise in these appeals for the reasons, which we have given earlier. Accordingly, the aforesaid three appeals will also fail and stand dismissed.
32. Coming to the two appeals, filed by Mr. Yogesh Pacholia, we are left with two points which he has raised relating to the grant of relief by the learned Single Judge quashing the order passed by the Government and directing the selection to be proceeded with. He contends that the writ petitioners do not have any legal right. In this regard, he referred to the two decisions of the Apex Court, which we have referred to. It is true that a person, who applies pursuant to an advertisement for public employment may not have a legal right as such to ensure that the selection is carried to its logical end. The recruitment process commenced by the issuance of the advertisement calling for applications is ordinarily taken to its logical end. It is settled law, however, that it is always open to the Government to withdraw from the recruitment process, no doubt, for valid reasons. In all such matters, the only caveat is 49 that being Government, it is duty bound to act fairly. Under the Constitution of India, it cannot act arbitrarily, but if there are reasons, the Court would not, in judicial review, interfere with the decision of the Government to withdraw from the selection. In this case, as we have noticed from the judgment in the batch of cases, where we have dismissed the appeals, the learned Single Judge dealing with the challenge to the advertisement did not interfere with the advertisement. However, on the other hand, the learned Single Judge proceeded to hold that the persons therein could be repatriated but on a case to case basis. In fact, in a modification petition also, it is pointed out that the learned Single Judge has taken the same view. It is the stand of the Government that it will be done on the said basis.
33. We are faced with the question, as to what is the meaning of the words 'case to case basis' in the light of what we have discussed in the judgment earlier. In regard to the effect of the orders dated 05.02.2013 followed by order dated 01.08.2013 and also last order dated 31.03.2014 culminating in the advertisement dated 27.06.2014, according to learned Additional Chief Standing Counsel, what is contemplated is that as and when persons are selected under the advertisement based on the orders dated 05.02.2013 and 01.08.2013, persons like the appellants would be repatriated. We record the said submission. As far as the judgment of the learned Single Judge goes, directing that the selection must be taken to its logical end and the quashing of the order is concerned, we think that the appellants may be justified in complaining that it was not 50 warranted. The contents of the impugned order in the writ petition would show that the Government was faced with two conflicting orders. On the one hand, the Government was asked to proceed with the matter and on the other hand, the Government was also directed that the repatriation must be based on case to case basis. The Government has passed the order only reflecting the directions given by the learned Single Judge in the batch of cases. As far as the Government is concerned, that direction was binding, as the Government did not carry the matter in appeal. If the Government takes the stand on the basis of a decision, which is binding on it, it cannot be held to be an illegal stand. In such circumstances, the quashing of the said order by the learned Single Judge cannot be justified. Therefore, we would dispose of the aforesaid two appeals filed by Mr. Yogesh Pacholia, learned counsel as follows:
We set aside the direction quashing the impugned order.
We also reiterate the stand placed before us by the learned Chief Standing Counsel that as and when persons are selected pursuant to the advertisement issued for the purpose of filling up the posts of Block Resource Person and Cluster Resource Person, they would be given appointment and the persons who were appointed earlier as Coordinators would be repatriated.
34. In the light of this, we need not deliberately go into the question that the writ petitioners do not have a legal right to approach this Court. There is a case for Mr. Yogesh Pacholia, learned counsel that the writ petitioners did not seek to 51 displace the persons like the persons who were selected. Having regard to the discussion we have had in the other batch of appeals and the effect of the order dated 05.02.2013 and 01.08.2013, we do not see that the writ petitioners can lay emphasis on this aspect. Therefore, we set aside the judgment of the learned Single Judge as such and in place, we record the submission of learned Additional Chief standing Counsel that the selection will be completed pursuant to the advertisement within a period of three months from today.
(Alok Singh, J.) (K.M. Joseph, C. J.)
09.08.2017 09.08.2017
Rahul