Allahabad High Court
Akhilesh Kumar Pandey And 5 Others vs State Of U.P. And 2 Others on 20 September, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 17 Case :- WRIT - A No. - 38431 of 2017 Petitioner :- Akhilesh Kumar Pandey And 5 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Siddharth Khare, Praveen Kumar Shukla, Sr. Advocate Counsel for Respondent :- C.S.C., Ashok Kumar Yadav With: Writ-A Nos.-- 4869 of 2016, 11614 of 2017, 39408 of 2017, 40551 of 2017, 40552 of 2017, 41295 of 2017, 42356 of 2017, 42373 of 2017, 42386 of 2017, 42392 of 2017, 42668 of 2017, 42682 of 2017, 42684 of 2017, 42688 of 2017, 42706 of 2017, 42709 of 2017, 42712 of 2017, 42732 of 2017, 42734 of 2017, 43086 of 2017, 43098 of 2017, 43101 of 2017, 43108 of 2017, 43542 of 2017, 43543 of 2017, 43545 of 2017, 43719 of 2017, 44009 of 2017, 44011 of 2017, 44018 of 2017, 44022 of 2017, 44252 of 2017, 44256 of 2017, and 44264 of 2017. ---------- Hon'ble Pradeep Kumar Singh Baghel,J.
This batch of writ petitions raises substantially similar issue of law and facts. The writ petitions can, therefore, be conveniently disposed of by a common judgment.
All the petitioners in the present batch of writ petitions were the candidates for appointment to the post of Assistant Teachers in the Basic Schools in pursuance of a Government Order dated 27th September, 2011. They have instituted the present writ proceedings for issuance of a direction upon the respondents to grant them appointment as trainee teachers in Junior Basic Schools run by the Uttar Pradesh Board of Basic Education1.
In pursuance of a Government Order dated 27th September, 2011 total 72,825 posts of Assistant Teachers in Primary Schools run by the Board were advertised on 30th November, 2011. The said selection was to take place on the basis of the marks obtained in Teacher Eligibility Test2 only. The advertisement and subsequent Government orders in respect of the said recruitment became subject matter of a series of litigation which culminated in the judgment of the Supreme Court in Civil Appeal Nos. 4347-4375 of 2014, State of U.P. and others v. Shiv Kumar Pathak and others, dated 25th July, 2017.
The brief facts which are necessary to dispose of this batch of petitions are recapitulated as under:
In the State of Uttar Pradesh, prior to coming into force the Uttar Pradesh Basic Education Act, 19723, the basic education was governed under the provisions of the United Provinces Panchayat Raj Act, 1947, the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporations Act, 1959. It was felt by the State Government that these institutions are not being properly conducted and run by the local bodies for various reasons, therefore, it became necessary for the State Government to take over its control into its own hands for reorganising, reforming and expanding elementary education.
Accordingly, in the year 1972, the Act, 1972 i.e. the Uttar Pradesh Basic Education Act, 1972 (U.P. Act No. 34 of 1972) was enacted to streamline the basic education in the State with an object to achieve the goal of directive principles of the State enshrined under Article 45 of the Constitution of India. All the institutions run in the rural areas and urban areas conducted by the Zila Parishads and Municipal Corporations were transferred to the Board under Section 9 of the Act, 1972. The services of the teachers and non-teaching staff of such institutions also stood transferred to the Board.
The State Government exercising its power under Section 19 of the Act, 1972 framed the Uttar Pradesh Basic Education (Teachers) Service Rules, 19814. The said Rules of 1981 provides the procedure for recruitment, qualification and other service conditions of the teachers.
All the teachers in the Basic Schools run by the Board were appointed in terms of the qualification prescribed in the Rules, 1981 upto the year 1993.
In the year 1993 the Parliament enacted the National Council for Teacher Education Act, 19935. The object of the NCTE Act is to establish a National Council for Teacher Education6 with a view to achieving planned and co-ordinated development for the teacher education system throughout the country. Section 31(1) of the NCTE Act confers the rule-making power upon the Central Government. Section 32 thereof empowers the NCTE to frame regulations to carry out the object of the NCTE Act.
Regard may be had to the fact that the NCTE, after the enactment of the NCTE Act, exercising its power under Section 32 of the NCTE Act, on 04th September, 2001 framed the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 20017. The NCTE Regulations, 2001 lays down the essential qualification for appointment to the post of teachers in Basic Schools including elementary schools imparting instructions at Junior Basic Schools and Senior Basic Schools. First Schedule in the said Regulations provides the essential qualification for appointment of teachers in Basic Schools.
By the Eighty-sixth Constitutional Amendment, Article 21-A was inserted in the Constitution casting an obligation on the State to provide free and compulsory education to all children of the age of six to fourteen years in such manner as it may, by law, prescribe.
In furtherance of the object of Article 21-A of the Constitution, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 20098.
The Central Government has issued the Right of Children to Free and Compulsory Education Rules, 20109 under the RTE Act. The said Rule also deals with acquisition of minimum qualification. It empowered the Central Government to notify an academic authority for laying down the academic qualifications for the appointment as a teacher in Basic Schools. On 27th July, 2011 the State of Uttar Pradesh also framed the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 201110 under the RTE Act.
Section 23 of the RTE Act provides that the Central Government shall authorise an academic authority to prescribe the qualification for appointment and the terms and conditions of service of teachers. In exercise of said power, the Central Government authorised the NCTE to perform such function.
After the Central Government authorised the NCTE under the RTE Act, the NCTE issued another regulation, known as the National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 200911.
The NCTE on 23rd August, 2010, exercising the powers conferred upon it pursuant to the Central Government's authorisation under Section 23(1) of the NCTE Act, issued a notification laying down the essential qualification for a person to be eligible for appointment as a teacher for Classes I to VIII.
One of the essential qualifications prescribed therein is passing of the Teacher Eligibility Test (TET) to be conducted by the appropriate Government in accordance with the guidelines framed and issued by the NCTE for the purpose. The other qualifications mentioned in the notification of the NCTE are not relevant for the purpose of this case, hence they need not to be mentioned in detail.
In the State of Uttar Pradesh, prior to enactment of the NCTE Act one of the essential qualifications provided in the Rules, 1981 was Basic Teacher's Certificate (BTC), Vishishta BTC, Two Years' BTC Urdu special training course, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognised by the Government as equivalent thereto, which was compulsory.
Since there were limited seats in the training institutes which impart the B.T.C. course, huge vacancies culminated in the State due to lack of qualified teachers. The State Government to meet the exigency formulated a scheme vide a Government order dated 26th May, 1999 to engage Shiksha Mitra to impart education in Basic Schools, on contract basis against payment of honorarium. Engagements were for a period of eleven months renewable on satisfactory performance and the qualification therefor was only Intermediate.
In Clause (3) of the notification dated 23rd August, 2010 of the NCTE, the candidates having B.Ed. qualification were also treated as eligible subject to condition that they are imparted six months' special training programme in elementary education. On 11th February, 2011 the NCTE clarified in its guidelines in respect of the Teacher Eligibility Test (TET) which provides for giving weightage to the marks of TET in the recruitment of teachers.
On 09th November, 2011 the State Government amended the Rules, 1981 vide its Twelfth Amendment, whereby passing of TET was inserted as one of the essential qualifications for appointment as a teacher. Rule 14 (3) thereof laid down that the selection shall be made on the basis of the marks in the TET.
The Board of High School and Intermediate Education, Uttar Pradesh was entrusted the task of holding first teacher's eligibility test. In November, 2011 the first TET was conducted and its result was declared on 25th November, 2013, but serious allegations of malpractice were alleged against the functionaries which held the said test. The said allegations were examined by a high-power committee and it recommended that the TET should be made only a qualifying examination. The State Government accepted the said report and it took a decision to treat the TET as a minimum qualification and not the basis of selection.
In view of the said facts, the State Government again amended the Rules, 1981 vide its Fifteenth Amendment, which was introduced on 31st August, 2012. By this amendment the earlier amendment carried out by Twelfth Amendment was amended and the criterion of quality point marks, which was prevalent before the Twelfth Amendment, was revived. As noted above, by the Twelfth Amendment in the Rules, 1981 only the marks obtained in the TET was to be the criteria for selection, which was changed by the Fifteenth Amendment by introducing the criterion of quality point marks.
In view of the Fifteenth Amendment in the Rules, 1981, the State Government vide order dated 31st August, 2012 cancelled the advertisement dated 30th November, 2011.
At this juncture, a large number of writ petitions were filed challenging the said Government Order dated 31st August, 2012 praying that the process of selection which was initiated in pursuance of the advertisement dated 30th November, 2011 be completed pursuant to the Twelfth Amendment in the Rules, 1981 and a further prayer was sought to strike down the Fifteenth Amendment of the Rules, 1981 as ultra vires.
It is to be noted that by the Sixteenth Amendment in the Rules, 1981 the State Government in December, 2012 added a definition of "trainee teacher" under Rule 2(1)(u) of the Rules, 1981.
While the aforesaid writ petitions challenging the amendment were pending before this Court, the State Government issued an order dated 05th December, 2012 initiating the process of appointment on the post of trainee teachers and pursuant thereto the District Basic Education Officers of the respective districts issued the advertisements calling the applications from B.Ed. candidates who have passed TET.
The writ petitions challenging the aforesaid amendment and the advertisement were dismissed by the learned Single Judge of this Court on 16th January, 2013. Aggrieved by the judgment and order of the learned Single Judge, several special appeals were filed led by Special Appeal Defective No. 237 of 2013 (Shiv Kumar Pathak and others v. State of U.P. and others), 2013 (10) ADJ 21 (DB). The Division Bench allowed the special appeals vide judgment and order dated 20th November, 2013. The Court declared the Fifteenth Amendment Rules dated 31st August, 2012, insofar as Rule 14(3) of the Rules, 1981 is concerned, ultra vires and struck down the said provision.
Dissatisfied with the aforesaid judgment of the Division Bench, several special leave petitions were filed before the Supreme Court which were converted to Civil Appeal Nos. 4347-4375 of 2014 (State of U.P. and others v. Shiv Kumar Pathak and others). In the Supreme Court, a large number of appeals were filed and the candidates had also filed I.As. therein. Several interim orders have been passed by the Supreme Court therein from time to time.
The writ petitioners in this batch of petitions are claiming their appointment on the basis of some of the interim orders passed by the Supreme Court from time to time. Hence, the relevant interim orders passed by the Supreme Court need to be mentioned.
On 25th March, 2014 the Supreme Court granted leave, expedited the hearing and passed a conditional interim order. The order of the Supreme Court reads as under:
"Leave granted.
Hearing expedited.
By this interim order, we direct the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in the schools pursuant to the advertisement issued on 30.11.2011 as per the directions issued by the Division Bench of Allahabad High Court in the case of Shiv Kumar Pathak & Ors. (Special Appeal (Defective) No. 237 of 2013) and connected matters as expeditiously as possible at any rate within 12 weeks' time from today.
Further, the State in the letter of appointment that will be issued to the successful candidates shall mention that their appointment is subject to the result of the civil appeals that are pending before this Court.
The appointee(s) shall not claim any equities at the time of final disposal of the civil appeals. All actions/ proceedings of the State Government will be subject to the final result of these civil appeals."
On 17th December, 2014 the hearing was resumed. The Supreme Court found that despite the orders passed on 25th March, 2014 the State Government has failed to carry out the appointment process. Accordingly, the Court modified the order dated 25th March, 2014 and directed the State Government to appoint the candidates, whose names have not been weeded out in the malpractice and who have obtained/secured seventy percent marks in TET. The relevant part of the order dated 17th December, 2014 reads as under:
"Despite the aforesaid order, the State has not carried out the appointment process. After hearing the learned counsel for the parties at length on various occasions, we are inclined to modify the order passed on 25th March, 2014, and direct that the State Government shall appoint the candidates, whose names have not been weeded out in the malpractice and who have obtained/secured seventy percent marks in the Teacher Eligibility Test (TET). The candidates belonging to Scheduled Caste/Scheduled Tribe/Other Backward Classes and the physically handicapped persons, shall be appointed if they have obtained/secured sixty-five percent marks. If there is any policy of the State Government covering any other category for the purpose of reservation, it may be given effect to with the same percentage. It shall be mentioned in the appointment letter that their appointment shall be subject to the result of these appeals and they shall not claim any equity because of the appointment, for it is issued on the basis of the direction passed by this Court. The letters of appointment shall be issued within a period of six weeks.
*** *** *** .... In such a situation, we cannot conceive that the posts would lie vacant, students go untaught and the schools look like barren in a desert waiting for an oasis. The teacher shall serve the purpose of oasis in the field of education. Hence, the aforesaid directions.
The competent authority shall file a compliance report, failing which they shall face the consequences as the law provides and the law does not countenance disobedience of the law and orders of the court.
Let the matter be listed on 25th February, 2015, for further hearing."
On 25th February, 2015 learned Senior Advocate appearing for the State of Uttar Pradesh filed an affidavit sworn by the Joint Secretary, Board of Basic Education, U.P. informing the Court that the State Government in compliance with the order dated 25th March, 2014 has issued orders dated 27th June, 2014 and 01st July, 2014 deciding to make the selection and appointment against 72,825 post of trainee teachers in the Basic Schools and accordingly, fourth round of counseling has been conducted. The last counseling was conducted from 09th January, 2015 to 14th January, 2015 and only those candidates who have secured 70 per cent marks (105 marks) in general category and 65 per cent marks (97.5 marks) in the reserved category have been permitted to participate in the said counseling and they have been offered appointment and they have also joined the post in question.
It has also been pointed out in the said affidavit that several candidates have participated in the counseling in more than one district but they have been permitted to join their post only once and accordingly, although total 83,983 appointment letters were issued but joining has taken place only by 43,651 candidates. Thus, 29,174 vacancies are existing and the process of filling up the remaining vacancies is in progress. The State Government sought four weeks' time to issue public notice to the candidates for joining in the vacancies.
In the said order the Supreme Court provided that if the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes have secured 65% marks and their number meets the requirement, the vacancies meant for their quota shall be filled up by such candidates. In case the candidates of 65% are not available, the State was granted liberty to offer appointment to the candidates who have secured 60% of the marks. A further direction was issued to the State Government to issue public notice within four weeks requiring the selected candidates in respect of 29,174 vacancies to join and if they fail to join within the stipulated period provided in the public notice, their right shall be forfeited. Certain other directions in respect of the candidates in the category of horizontal quota were also issued, which are not relevant for the present case.
On 27th July, 2015 I.A. Nos. 2 and 3 in Writ Petition (C) No. 167 of 2015 were heard. In those I.As. the issue with regard to absorption of Shiksha Mitras, who have not passed TET, was raised. It was alleged that they have been appointed as teachers in the schools contrary to the guidelines issued by the NCTE and also contrary to the rules framed by the State Government. The Court was prima facie satisfied that Shiksha Mitras who have not passed TET have been appointed on the post of Assistant Teacher in the schools being run by the Board. The Supreme Court requested the High Court that all the matters relating to Shiksha Mitras shall be heard by a Full Bench at Allahabad presided over by the Hon'ble the Chief Justice and the writ petitions which are pending before the Lucknow Bench of the High Court shall be transferred to Allahabad. The Supreme Court has also clarified that its interim order dated 06th July, 2015 shall remain in force for a further period of ten weeks, but it was further clarified that the said interim order should not be placed reliance upon by any of the sides before the High Court as the Court has not expressed any opinion on the issue and all the interlocutory applications relating to Shiksha Mitras were disposed of.
On 02nd November, 2015 the Supreme Court passed an order which has a material bearing in the present case, hence the said order is extracted below:
"Heard Mr. Gaurav Bhatia, learned Additional Advocate General for the State of Uttar Pradesh and Mr. R. Venkataramani, learned senior counsel (Amicus Curiae).
It is submitted by Mr. Bhatia that keeping in view the order dated 27.07.2015, as against 72825 posts advertised, 43,077 candidates have been appointed, who, after completion of the training till September 2015, are working in praesenti. It is also submitted that 15,058 candidates are undergoing training out of which 8,500 shall be appearing in the examination on 16th and 17th November, 2015 and the rest will be appearing in the examination after completion of their training. In the result around 14,640 posts still remain vacant.
At this juncture, number of counsel have raised a grievance that there are number of candidates who have secured more than 70% marks in TET examination in the general category and the lower percentage for other categories as per our earlier order and yet they are not appointed. At this juncture, learned Additional Advocate General submitted that some of the candidates might not have been appointed as they may not have been qualified otherwise under the NCTE Rules. We do not intend to interpret on the said point, as advised today.
However, the persons who are claiming that they are entitled to the benefit on the basis of the percentage fixed by the earlier order dated 27.07.2015 shall submit their applications/representations before the Secretary, U.P. Basic Education Board (Board), Allahabad within one week hence and the said authority shall constitute a Committee to verify their percentage of marks as well as criteria by which the persons who have already been selected and put the same on the website as well as due intimation be given to the applicants. If there is parity they shall be extended the benefit of our order forthwith. The said exercise shall be completed within three weeks.
Be it stated, in our earlier order, we had requested the learned Chief Justice of the High Court of Allahabad to constitute a Full Bench and dispose of the writ petitions after transferring them to himself. The Full Bench had delivered the judgment on 12.09.2015 which has been placed before us. The Full Bench has opined that Shiksha Mitras cannot take the benefit as per the law in the field. We do not intend to comment on that as we have been apprised at the Bar that certain special leave petitions are being filed challenging the said order. Needless to say, the legal propriety of the said order of the Full Bench shall be dealt with in the special leave petitions.
Mr. Rakesh Dwivedi, the learned senior counsel, would submit that he represents the set of the people who are qualified as per the prevalent rules and they should have been appointed had the High Court not struck down the Rules as ultra vires. Ordinarily, we would have dealt with this order making some kind of interim arrangement but we do not intend to get into the same now as we have been apprised that there are huge number of candidates and there will be a confusion. Be that as it may, the main thrust of the matter will be gone into on the next date of hearing.
A submission has been raised by learned counsel for the petitioner in Writ Petition No.167 of 2015 that because of the vacancies that are in vogue in State of U.P., education is impaired despite the command under Article 21A of the Constitution. We have been told that there are more than 4,00,000 vacancies. Mr. Anand Nandan, learned counsel appearing for the writ petitioners has pointed to para 2 of the counter affidavit to his writ petition filed by the Secretary, Basic Education, Govt. of U.P., Lucknow. The said paragraph reads as follows :
"2. That in reply to the contents of paragraph nos.2 and 3 of the Application it is stated that, TET Examination has been introduced to maintain a uniform standard of education throughout the Country by introducing it as the essential eligibility for appointment of Assistant Teacher in Basic Schools. At present 1,10,376 Primary Schools are being run by the Parishad, in the State of Uttar Pradesh. Under the Right to Education Act 2009, the number of teachers required to maintain the student teachers ratio is 4,86,182. At present 1,77,866 Assistant Teachers are working in the aforesaid circumstances, there is an immediate need of 3,08,316 Assistant Teachers in the various Primary Schools in the State to fulfill the aforesaid conditions contained in the Right to Education Act 2009 the Government of Uttar Pradesh submitted a proposal through their letter dated 03.01.2011 before the National Council for Teachers Education requesting them to conduct a full fledged training programme for graduate Shiksha Mitra. The aforesaid proposal of the State Government was approved by the National Council for Teachers Education through their letter dated 14.01.2011."
As against the said assertion, there has been some cavil raised by Mr. Abhishek Shrivastava, learned counsel appearing for the Board.
In this regard, we require Mr. Bhatia to explain to us about the number of vacancies.
At this juncture, we must formulate the issues that the learned counsel should address while arguing the matter on the next date, for we are not inclined any more to deal with the matter as interim measures. The issues are as under:
a) Whether the NCTE Guidelines fixing the minimum qualification are arbitrary and unreasonable?
b) Whether the marks obtained in the TET Examination is the sole criterion for filling up the vacancies?
c) Whether the High Court is justified in declaring the 15th Amendment brought in on 31.08.2012 to the U.P. Basic Education (Teachers) Service Rules, 1981?
d) Assuming, the guidelines framed by the NCTE are treated as intra vires, the question will be what interpretation would be placed by the Court on the concept of weightage as mentioned in the guidelines of the NCTE?
Needless to say, if any ancillary issue arises, the same shall also be addressed to. It is hereby made clear that except these issues, no other submissions as regards the interim arrangement shall be entertained.
The personal presence of the authorities stand dispensed with for the present.
Let the matters be listed on 07.12.2015 at 2.00 p.m. Needless to say, if the matter is not completed on that day, it will continue at 2.00 p.m. on 08.12.2015."
On 07th December, 2015 the Supreme Court was apprised by the learned Additional Advocate General of the State that in compliance with its earlier order dated 02nd November, 2015 more than 75,000 representations were received and after scanning the same, the State Government has found 12,091 persons eligible for being appointed subject to verification of antecedents. The Court directed for their appointment subject to the said verification within six weeks. The relevant part of the order reads as under:
"At this juncture, we may state that Mr. Bhatia, learned AAG submitted that in pursuance of the direction of this Court on the earlier occasion and prior to that more than 75,000 representations were received and after scanning the same, the State Government has found 12,091 persons eligible for being appointed subject to verification of antecedents. Let the said persons be appointed subject to the said verification within six weeks hence."
On the same day i.e. 07th December, 2015, some of the counsel before the Supreme Court submitted that they represent approximately 1100 people and some arrangements should be made for them also. On the instruction of learned Advocate General, the Supreme Court passed the following direction:
"At this juncture, Mr. Rakesh Dwivedi, learned senior counsel, Mr. Neeraj Jain, Mr. Siddharth Dave, Mr. Sanjay Hegde, Mr. Vikas Singh, Mr. Anand Nandan, Mr. Arvind Srivastava, Mr. Ajay Jain, Ms. Rachana Shrivastava, Mr. Avnish Singh, Mr. D.K. Tiwary, Mr. Rajiv Dubey, Ms. S. Janani, Mr. Ashok Kuamr Sharma and Mr. Manoj Prasad learned counsel submit that they represent approximately 1100 people and some arrangement should be made for them. On being asked, Mr. Vijay Bahadur Singh, learned Advocate General submitted that the State has no objection to offer them appointment on ad hoc basis subject to result of the special leave petitions. Let that be done within four weeks hence. Needless to say, no right shall accrue in their favour because of this order."
In pursuance of the aforesaid directions of the Supreme Court, the State Government has issued an order dated 09th February, 2016 for the ad hoc appointments and allocation of the places of the districts. On the same day, the Board published a public notice informing the candidates, who have been appointed in compliance with the order of the Supreme Court, for submitting their testimonials for their appointment in compliance with the order of the Supreme Court.
In its order dated 24th February, 2016 the Supreme Court noticed that some of the applicants had moved the interlocutory applications before the Supreme Court raising grievance that though they stand on the similar footing with the persons who have been appointed pursuant to the order dated 07th December, 2015, the State Government has not considered their cases. The Court permitted those applicants to serve a copy of the interlocutory applications upon Mr. Gaurav Bhatia within a week and the State was directed to consider their applications on the parameters which were fixed on the last occasion and ten weeks' time was granted for compliance of the order. Counsel for some of the candidates, who had not filed any I.A., were also granted liberty to serve a list of the names of their clients to Mr. Gaurav Bhatia.
On 24th August, 2016 some of the beneficiaries of the interim orders dated 07th December, 2015 and 24th February, 2016 raised their grievance that the orders passed by the Court on earlier occasions have not yet been complied with by the State. Learned counsel for the State was directed to file an affidavit of the competent authority, Secretary of the Department concerned, regarding compliance of the order and if they have faced any difficulty in complying with the orders of the Court, they were directed to apprise the Court on the next date.
On 17th November, 2016 the Supreme Court fixed the next date 22nd February, 2017 and noticed its earlier order that no further interlocutory applications shall be entertained or no interim order shall be passed.
In compliance with the order of the Supreme Court dated 24th August, 2016, the Secretary, Basic Education, U.P., Lucknow filed an affidavit of compliance, wherein it was mentioned that in compliance with the order dated 07th December, 2015 the State has found 12,091 persons eligible for being appointed subject to verification of the antecedents. Therefore, in compliance with the said order the State Government issued an order dated 03rd February, 2016 granting permission for one opportunity through counseling in their applied districts to those 12,091 applicants, who either did not appear for the then counseling in the district or did not got interim selection. The said information was published in widely circulated four newspapers on 06th February, 2017. It is also mentioned that learned Advocates on record have submitted to the Board a list of 862 candidates, whose vakalatnamas were on the record on the date of the order of the Hon'ble Supreme Court. The Board has examined the information submitted by the respective counsel for appointment of the candidates and till 18th February, 2016, 840 candidates were given appointment on the post of 'trainee teachers' on ad hoc basis.
In this batch of writ petitions, the grievance raised by the petitioners is that in the list of 862 candidates the petitioners' names have not been included despite the fact that they had filed interlocutory applications before the Supreme Court and their vakalatnama was also filed much before 07th December, 2015. It is stated that they are similarly circumstanced persons to those 862 candidates, who have been granted appointment in terms of the order of the Supreme Court dated 07th December, 2015, 24th February, 2016 and 24th August, 2016. The petitioners claim that some of the trainee teachers, who have been appointed in compliance with the order of the Supreme Court, have secured lower marks than the petitioners in the UP TET but the petitioners' claim has not been considered. They have also filed their representations before the authorities concerned with regard to their grievance but without any result.
I have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddhartha Khare, and Sri Seemant Singh, Sri Arvind Srivastava and other learned Advocates, who are appearing for the petitioners in the respective writ petitions, and learned Standing Counsel for the State functionaries.
From the facts mentioned herein-before it is evident that all the petitioners are seeking benefit of the interim orders passed by the Supreme Court on 07th December, 2015, 24th February, 2016 and 24th August, 2016. The Division Bench of this Court while deciding the special appeals in the case of Shiv Kumar Pathak and others (supra) has set aside the judgment of the learned Single Judge, who had denied the relief to the appellants therein on the ground that the advertisement dated 30th November, 2011 mentioned the post of teachers as "trainee teachers", whereas in the Rules, 1981 there is no cadre of 'trainee teachers', and on that ground the learned Single Judge had found that the advertisement dated 30th November, 2011 itself was illegal, hence the petitioners therein were not entitled for any relief.
The Division Bench also found that the Government order dated 26th July, 2012, whereby the TET was treated as only a minimum qualification and not the basis of selection, was not in conformity with law. Immediately thereafter on 31st August, 2012, the Fifteenth Amendment Rules in the Rules, 1981, was published, by which the earlier criterion of 'quality point marks' was substituted. Thus, the criterion for selection was made which was prevalent before the Twelfth Amendment in the Rules, 1981. The Division Bench allowed the special appeals in the following terms:
"89. In the result all the Special Appeals are allowed to the following extent:
1. The Government Order dated 26.7.2011 insofar as it directs for restoration of criteria for selection as was prevalent prior to 12th amendment rules is set-aside.
2. The U.P. Basic Education (Teachers) Service Amendment Rules, 2012 (15th Amendment Rules dated 31.8.2012) in so far as Rule 14 (3) is concerned is declared to be ultra-vires to Article 14 of the Constitution and are struck down. Consequently, the Government Order dated 31.8.2012 as well as the communication dated 31.8.2012 issued by the board of Basic Education are set-aside.
3. Respondents are directed to proceed and conclude the selection as per the advertisement dated 30.11.2011 as modified on 20.12.2011 to its logical end within the time allowed by the Central Government vide its notification issued under Section 23 (2) of the Act, 2009.
4. The judgment of the learned Single Judge is modified to the above extent."
Dissatisfied with the said order of the Division Bench, as mentioned above, Civil Appeal Nos. 4347-4375 of 2014, State of U.P. and others v. Shiv Kumar Pathak and others, were filed. The Supreme Court vide judgment and order dated 25th July, 2017 disposed of the appeals. In the said appeals the Supreme Court found that the NCTE itself in its notification dated 11th February, 2011 had clarified that provision that weightage be given to the marks obtained in TET, is not mandatory. Hence, the Supreme Court held that the Fifteenth Amendment in the Rules, 1981 was valid and the High Court erred in quashing the said amendment. The relevant part of the order of the Supreme Court dated 25th July, 2017 reads as under:
"17. As a result of above, in normal course the State would have been at liberty to proceed with the selection in terms of advertisement dated 7th December, 2012 in accordance with the amended rules by way of 15th amendment, in view of developments which have taken place during pendency of these appeals, the said advertisement cannot proceed and while upholding the said advertisement, relief has to be moulded in the light of developments that have taken place in the interregnum.
*** *** ***
19. We have been informed that 66,655 teachers have already been appointed in pursuance of the interim orders of this Court. Having regard to the entirety of circumstances, we are not inclined to disturb the same. We make it clear that the State is at liberty to fill up the remaining vacancies in accordance with law after issuing a fresh advertisement."
From the above order it is manifestly clear that the Supreme Court has saved 66,655 appointments which were made from time to time in compliance with the various orders passed by the Supreme Court and the State was directed to fill up the remaining vacancies in accordance with law after issuing a fresh advertisement.
Relevant it would be to mention that along with the aforesaid Civil Appeal Nos. 4347-4375 of 2014, several contempt petitions were tagged. Those contempt petitions have also been disposed of on the same day i.e. 25th July, 2017. It was also recorded in the order that pending applications, if any, shall also stand disposed of. The relevant part of the order reads as under:
"...In terms of the signed Reportable Judgment, these matters are disposed of:
*** *** *** Pending applications, if any, shall also stand disposed of."
In view of the clear direction of the Supreme Court, this Court finds that the relief sought for by the petitioners to reopen the issues on merit regarding appointment of 862 candidates in pursuance of the interim order dated 07th December, 2015 is misconceived. As noted above, all the 66,655 appointments including 862 candidates have not been disturbed by the Supreme Court. Thus, this Court has no jurisdiction to even consider the alleged illegality, if any, in the appointments made pursuant to the said interim order.
Additionally, the Supreme Court has directed to issue fresh advertisement for recruitment in respect of remaining vacancies. I am of the view that if the prayer sought by the petitioners is granted, it can tantamount to modify the order of the Supreme Court, therefore, said prayer cannot be granted.
For the reasons mentioned hereinabove, I find that the writ petitions lack merit and are accordingly dismissed.
No order as to costs.
Date :- 20th September, 2017 SKT/-