Allahabad High Court
Rajendra Kumar And 42 Others vs State Of U.P. Through Principal ... on 15 July, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:113090-DB Court No. - 29 Case :- SPECIAL APPEAL No. - 334 of 2024 Appellant :- Rajendra Kumar And 42 Others Respondent :- State Of U.P. Through Principal Secretary/ Upper Principal Secretary Basic Education And Another Counsel for Appellant :- Manoj Kumar Pandey,Prabhakar Awasthi Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. De-tag the Special Appeal Defective No.465 of 2024 from the present special appeal.
2. Heard Shri Prabhakar Awasthi, learned counsel for the appellants-petitioners; Shri Fuzail Ahmad Ansari, learned counsel for State respondents and Mrs. Archana Singh, learned counsel for Board of Basic Education.
3. Present intra-court appeal is preferred questioning the validity of order dated 29.02.2024 passed by learned Single Judge in Writ Petition No.26301 of 2018 (Rajendra Kumar and others vs. State of U.P. and another), whereby, the learned Single Judge has dismissed the writ petition preferred by the appellants-petitioners in the light of judgement passed by Apex Court in Civil Appeal No.4347-4375 of 2014 (State of U.P. and others Etc. Etc. vs. Shiv Kumar Pathak and others Etc. Etc.) and placed reliance on paragraph 17 of the said judgement. For ready reference, the observations made in order dated 29.02.2024 is reproduced as under:-
"1.Heard Sri Raj Kumar Kesari, learned counsel for petitioners and Sri Manvendra Dixit, learned Standing Counsel.
2. Petitioners have approached before this Court that they were eligible to participate in the selection process in pursuance of Advertisement dated 07.12.2012 for appointment on the post of Assistant Teachers which has to be in accordance with 15th amendment to the relevant 1981 Rules.
3. Learned counsel for the petitioner submits that no specific order was passed neither by this Court nor by the Supreme Court to cancel selection process to be initiated in pursuance of advertisement dated 7.12.2012, therefore respondents were under legal obligation to conclude the same. However, due to their default, petitioners have now become overage.
4. I have heard the argument of counsel for petitioner at length. However, the crux remains on the interpretation of paragraph 17 of a judgment passed by Supreme Court in Civil Appeal Nos.4347-4375 of 2014, State of U.P. & Ors Etc. Etc Vs. Shiv Kumar Pathak & Ors. Etc. Etc. which is mentioned hereinafter:
"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 intgerragnum."
5. As referred above, the Supreme Court was well conscious as due to different orders passed in the aforesaid case, there was no possibility to direct the State to pursue with the selection process in terms of Advertisement dated 7.12.2012.
6. In the aforesaid circumstances, since the Supreme Court has also held that it cannot direct the State to proceed with the selection process in pursuance of advertisement dated 7.12.2012, therefore, this Court has no occasion to over march the aforesaid order, therefore, reliefs sought by the petitioners cannot be granted.
7. Writ petition is accordingly dismissed."
4. Present matter relates to the recruitment of the year 2011 pertaining to the vacancy of 72825 posts for appointment of Teachers of primary schools advertised on 30.11.2011.
5. The U.P. Basic Education Board constituted under the U.P. Basic Education Act, 1972 (hereinafter referred to as '1972 Act') is running various junior basic schools and Senior basic schools from classes I to VIII. The criteria and procedure for selection is regulated by the U.P. Basic Education (Teachers) Service Rules, 1981 framed under the 1972 Act.
6. For achieving planned and co-ordinated development of the teacher education system throughout the country and for the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith, the National Council for Teachers Education Act, 1993 was enacted by the Parliament (hereinafter referred to as 1993 Act). The Right to Education, having been recognised as a fundamental right under the Constitution of India, and the State being responsible to provide free and compulsory education to the children up to 6 to 14 years, the Parliament enacted the Right of Children to Free And Compulsory Education Act, 2009 (in short the 'Act 2009'). Under section 23 of Act 2009 the National Council for Teacher Education has been authorised by the Central Government to lay down minimum qualifications for appointment of teachers. The National Council For Teacher Education vide notification dated 23.8.2010 laid down various qualifications for appointment of teachers. Passing of Teachers Eligibility Test has been laid down as one of the qualifications, which is to be possessed by a candidate for appointment as a teacher.
7. Clause 3 of the notification dated 23.8.2010 provides that candidates having B.Ed. qualification have also been treated as eligible provided they have undergone six months' special training programme in the elementary education. On 11.2.2011, the National Council For Teacher Education issued guidelines for conduct of Teachers Eligibility Test, which further provides for giving weightage to the marks of the Teachers Eligibility Test in the recruitment of teachers. Meanwhile on 9.11.2011, 1981 Rules were amended by the 12th Amendment, incorporating passing of Teachers Eligibility Test as one of the minimum qualifications in the 1981 Rules. Rule 14(3), as amended, further provides that selection shall be made on the basis of marks in the Teachers Eligibility Test.
8. By virtue of notification dated 23.8.2010, the candidates who possessed B.Ed. qualification were invited to apply for appointment as Trainee Teacher against 72,825 posts of Teachers for various schools in the State of U.P. Lateron some irregularities has surfaced in the T.E.T. Examination held in the year 2011. On 10.4.2012, the State Government constituted a High Power Committee headed by the Chief Secretary of State to look into the allegations relating to Teachers Eligibility Test examination 2011 and to submit a report. On 1.5.2012, the High Power Committee submitted a report with several recommendations comprising that Teachers Eligibility Test should be made only a qualifying examination. It was further recommended that those candidates of Teachers Eligibility Test examination 2011, who are found involved in any irregularity/criminal activity be prohibited from selection and their selection be cancelled.
9. It transpires that recommendations made by the High Power Committee was considered and accepted by the Cabinet. A decision was taken by the Cabinet, which has been notified by the Government Order dated 26.7.2012 and it was resolved that the Teachers Eligibility Test be treated only as a minimum qualification and not the basis of selection and further the candidates, who were found involved in any irregularity and criminal offenses were to be prohibited in the selection.
10. On 31.8.2012, 15th Amendment to the Rules were published by which the earlier criteria of selection, which was on the basis of marks in the Teachers Eligibility Test, as introduced by the 12th Amendments Rules, have been substituted by the criteria of 'quality point marks', which was prevalent since before the 12th Amendment Rules. A Government Order dated 31.8.2012 was also issued by the State stating that in view of the 15th Amendment rules, the advertisement dated 30.11.2011 have become ineffective hence, the same may be cancelled and the fee be returned to the candidates. U.P. Basic Education Board also issued the order dated 31.8.2012 accordingly.
11. It appears that Writ petition No. 39674 of 2012 (Akhilesh Tripathi Vs. State of U.P. and others) was filed in August, 2012 challenging the Government Order dated 26.7.2012 with further prayer of mandamus directing the respondents to complete the process of selection as per the advertisement dated 30.11.2011. After the publication of the 15th Amendment Rules, an amendment application has also been filed challenging the 15th Amendment Rules as well as the Government Order dated 31.8.2012 cancelling the advertisement dated 30.11.2011. Large number of writ petitions were filed by the candidates, who have applied in pursuance of the advertisement dated 30.11.2011. In December, 2012, the State Government issued 16th Amendment Rules by which definition of Trainee Teacher has been added as Rule 2(u) in 1981 Rules.
12. During the pendency of the said writ petitions, a Government Order dated 5.12.2012 was issued by the State Government initiating process of appointment for B.Ed. candidates, who have passed Teachers Eligibility Test on the post of trainee teacher. On 7.12.2012, Basic Shiksha Adhikari of various districts issued advertisement inviting applications. On 16.1.2013 all the writ petitions filed by the candidates have been dismissed by learned Single Judge. Various special appeals including Special Appeal Defective No.237 of 2013 (Shiv Kumar Pathak and others vs. State of U.P. and others) have been filed challenging the judgment of learned Single Judge dated 16.1.2013. A Division Bench of this Court on 4.2.2013 suspended the ongoing selection process till 11.2.2013, the interim order was extended from time to time. By order dated 20.11.2013 passed by the Division Bench, the said bunch of appeals were allowed and the 15th Amendment Rules was declared as ultra-vires to Article 14 of the Constitution of India. For ready ready, the observations made by order dated 20.11.2013 is reproduced as under:-
"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."
13. Against the said order passed in the Special Appeal, Special Leave Petition was filed before Hon'ble Apex Court, bearing Special Leave Petition No.1874-1902, which was disposed of by order dated 25.03.2014 with following observations:-
"By this interim order, we direct the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in the schools pursuance 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 and others. (Special Appeal (Defective) No.23/2013) and connected matters as expeditiously as possible at any rate within 12 weeks time from today."
14. In compliance of aforesaid order, the State Government vide order dated 24.12.2014 has initiated the proceedings of selection of teachers. It transpires that the judgement and order dated 20.11.2013 was subject matter of challenge before Hon'ble Apex Court in Special Leave to Appeal No.4347-4375 of 2014 (State of U.P. and others Etc. Etc. vs. Shiv Kumar Pathak and others Etc. Etc.), which also involves the question of validity of decision of the State of Uttar Pradesh in prescribing qualifications for recruitment of teachers at variance with the guidelines of the National Council for Teachers Education (NCTE) dated 11.02.2011 under Section 12(d) read with Section 12A of the National Council for Teachers Education Act 1993 and Section 23 of the Right of Children to Free and Compulsory Education Act 2009 (RTE Act) on the ground of repugnancy of State Law with the Central Law on a subject falling in concurrent list. The said appeals were disposed of by order dated 25.07.2017 passed by Hon'ble Apex Court, whereby, the 15th amendment notified on 30.11.2012 was upheld and following observations were made:-
"16. There is no manner of doubt that the NCTE, acting as an 'academic authority' under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE Act, was competent to Issue Notifications dated 23rd August, 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. However, since NCTE itself has taken the stand that notification dated 11th February, 2011 with regard to the weightage to be given to the marks obtained in TET is not mandatory which is also a possible Interpretation, the view of the High Court order In quashing the 15th Amendment to the 1981 Rules has to be Interfered with. Accordingly, while we uphold the view that qualifications prescribed by the NCTE are binding, requirement of weightage to TET marks is not a mandatory requirement.
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.
18. Vide interim order dated 25th March, 2014, this Court directed the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers. Thereafter, in terms of the impugned judgment on 17th December, 2014, the said order was modified and the State was directed to appoint candidates whose names were not involved in malpractices in the TET test and who had obtained 70% marks (65% for SC, ST, OBC and physically handicapped or any other category covered by the Government policy for reservation), 54,464 posts have already been filled up in compliance of the orders of this Court. The said appointments were subject to result of these matters. It was also observed that if anyone without TET qualification is appointed his services will be terminated. Vide order dated 2nd November, 2015 it was noted that against 72,825 posts which were advertised, 43,077 candidates had completed training and were working while 15,058 candidates were undergoing training. Around 14,690 posts were vacant. It was further observed that candidates who had the required percentage of marks in terms of order dated 27 July, 2015 were to file their applications and a Committee constituted for the said purpose could verify such percentage and if parity was found the same benefit could be extended.
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.
20. The matters will stand disposed of in above terms."
15. As certain vacancies remained vacant, the appellants-petitioners being eligible had preferred Writ Petition No.40249 of 2017 (Rajendra Kumar and others vs. State of U.P. and others) seeking mandamus for their appointment on the post of Assistant Teacher (Trainee) in primary section, which was disposed of by order dated 27.03.2018 asking the respondents to decide the representation of the appellants-petitioners and pass the appropriate order within three months. In compliance thereof, the respondents had decided the representation of the appellants-petitioners vide order dated 02.11.2018.
16. It appears that appellants-petitioners again approached learned Single Judge of this Court claiming that they were eligible to participate in the selection process in pursuance of Advertisement dated 07.12.2012 for appointment on the post of Assistant Teachers, which has to be in accordance with 15th amendment to the relevant 1981 Rules on the ground that no specific order was passed neither by this Court nor by the Supreme Court to cancel selection process to be initiated in pursuance of advertisement dated 07.12.2012, therefore, respondents were under legal obligation to conclude the same. The said writ petition was dismissed by order impugned dated 29.02.2024, which is subject matter of challenge in the present appeal.
17. Learned Counsel for the appellants submits that the appellants are eligible to participate in the selection process in pursuance of Advertisement dated 07.12.2012. No specific order was passed either by this Court or by the Supreme Court to cancel selection process to be initiated in pursuance of advertisement dated 7.12.2012, therefore, respondents were under legal obligation to conclude the same especially when leave was accorded by Apex Court while passing the final order dated 25.07.2017 to the effect that the State Government is at liberty to fill up the remaining vacancies in accordance with law. It is the responsibility of the respondents to make effort for filling up the remaining vacancies of the year 2011 in view of the mandate of the Apex Court. The said vacancies were left over by the respondent authorities and the same are still vacant.
18. Learned counsel for the appellants states that as the appellants-petitioners qualified the TET examination in the year 2012 so they could not apply in the advertisement dated 30.11.2011 and later-on two advertisements took place in the year 2018, wherein, the appellants could not apply as initially the TET certificate was valid only for five year, which ultimately was expired in the year 2017. He submits that even though the amendment was made by the State Government on 12.07.2021 but TET certificate of appellants could not revive. He submits that the appellants were fully eligible to participate in the selection process pursuant to Advertisement dated 07.12.2012 for appointment on the post of Assistant Teachers but on account of inaction and tackling practices of the respondents, the said advertisement stood suspended. He submits that learned Single Judge fails to appreciate the fact that there are no specific direction to cancel the selection process commenced on 07.12.2012 and the respondents are sitting tight over the unfilled vacancies, which has resulted in ruining the life and future of appellants and as such, the order impugned is liable to be set aside.
19. Per contra, Shri Fuzail Ahmad Ansari, learned Standing Counsel has vehemently submitted that in view of directions issued by the Apex Court in Shiv Kumar Pathak (supra), certain vacancies were filled up pursuant to Advertisement dated 30.11.2011 and only nominal vacancies remain vacant, which cannot be filled up through Advertisement dated 07.12.2012, which was suspended by the interim order dated 04.02.2013 passed by Division Bench of this Court. In support of his submission, he has placed reliance on the judgement passed by Hon'ble Apex Court dated 25.07.2017. For ready reference, the relevant paragraph 19 is reproduced as under:-
"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."
20. He submits that in response thereof, the State Government has made an advertisement in the month of January 2018 for filling up posts of 68500 Assistant Teachers and December 2018 for filling up posts of 69000 Assistant Teachers, therefore, at this stage in absence of any pleading in the writ petition, it cannot be said that the left over vacancies were any further remain vacant or carried forward. In support of his submission, he has placed reliance on the averment made in paragraphs 12 and 13 of the counter affidavit. For ready reference, the said paragraphs are reproduced as under:-
"12. That in compliance of the said interim order 17.12.2014, while issuing Letter No.5257/79-5-2014, dated 24.12.2014; the proceedings of selection of teachers were initiated. It is also relevant to mention here that the Civil Appeal No.4347-4375 of 2014, titled as Shiv Kumar Pathak vs. State of U.P. and others has finally been decided by this Hon'ble Court vide order dated 25.07.2017:-
???????.
13. That in compliance of the order dated 25.07.2017, Government Order dated 24.04.2018 has been issued and paras 9 and 10 thereof provides as under:-
??????? ??????? ??????? ???? 2011 ?????? ?? ??? ?? | ?????????? ??????? ??????? ??????? ?? ??????-???? ?? ??????? ???? ????? ?? ???? ?? | ??? ??????? ??????? ??????? ???? 2011 ?? ???????? ??????????? ?? ??????-???? ?? ????? ?????? ?? ???? ?? |"
21. Shri Ansari submits that a rejoinder affidavit has been filed and the appellants-petitioners vaguely responded the averment mentioned in paragraph 13 of counter affidavit through paragraph 22 of the rejoinder affidavit, which is reproduced as under:-
"22. That the contents of paragraph no.13 of the counter affidavit being the matter of the record, need no comment. However it is further submitted that the NCTE vide Regulation dated 9.6.2021 have substituted the validity of the period of TET qualifying certificate for appointment, valid for life and in pursuance thereof, the State of U.P. vide Patrank dated 12.07.2021 have declared the validity of the TET 'valid till life'."
22. In this backdrop, he submits that as the present matter relates to the recruitment of the year 2011 and since then much water has flown and already two recruitment process has completed in the month of January 2018 and December 2018. The appellants-petitioners were very much conscious with the fact that the validity of TET certificate, which was initially for five years, the same was over and they have not participated in the said recruitment process and just to revive the dead claim, they had approached the writ court and thereafter the present appeal is also preferred.
23. Shri Ansari, learned Standing Counsel has also placed reliance on Rule 14 of 1981 and submits that while issuing subsequent advertisement of the year 2018 even left over vacancies of the year 2011 were also included. He submits that the recruitment process initiated in the year 2012 has been suspended and in the said factual situation at this stage, the Learned Single Judge has rightly proceeded to dismiss the claim set up by the appellants in the light of the judgement passed by Hon'ble Apex Court and as such, no interference is required in the matter.
24. Heard rival submissions and perused the record.
25. The NCTE, acting as an 'academic authority' under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE Act, was competent to Issue Notifications dated 23rd August, 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. It is admitted situation that there were certain irregularities in the T.E.T. Examination held in the year 2011 and NCTE itself has taken the stand that notification dated 11th February, 2011 with regard to the weightage to be given to the marks obtained in TET is not mandatory and thereafter the 15th Amendment Rules were published by which earlier criteria of selection, which was on the basis of marks in the Teachers Eligibility Test, as introduced by the 12th Amendments Rules, have been substituted by the criteria of 'quality point marks' and consequently the Advertisement dated 30.11.2011 has become ineffective.
26. The said action of the respondents has been challenged before learned Single Judge and Division Bench of this Court and thereafter upto Apex Court. Meanwhile, the the Board of Basic Education has initiated proceeding for selection of Assistant Teacher (Primary) on 07.12.2012, which was suspended by order dated 04.02.2013 passed by the Division Bench of this Court. As per the direction issued by the Division Bench of this Court and Hon'ble Apex Court, the vacancies of Assistant Teachers (Primary), which were issued through Advertisement dated 30.11.2011 were filled up except certain nominal vacancies.
27. The appellants claim for recruitment through Advertisement dated 07.12.2012 is no more considerable, as after passing the order by Hon'ble Supreme Court in Shiv Kumar Pathak (supra) dated 25.07.2017 two recruitment processes were completed in the year 2018 and there is no document appended alongwith the writ petition as well as in the counter affidavit and rejoinder affidavit to indicate that the left over vacancies are still not filled up. At this belated stage, the appellants-petitioners are trying to revive a dead claim, which was rightly dealt with by Learned Single Judge while passing the order impugned by placing reliance on paragraph 17 of the order dated 25.07.2017, which also considers various orders passed by Division Bench of this Court as well as the Apex Court and their consequent effect.
28. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order.
29. In view of above, the special appeal sans merit and is, accordingly, dismissed.
Order Date :- 15.7.2024 A. Pandey