Uttarakhand High Court
State Of Uttarakhand And Others vs Amit Kumar on 4 September, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Special Appeal No.82 of 2017
State of Uttarakhand & others ... Appellants
vs.
Satyanand Sharma & others ... Respondents
AND
Special Appeal No.85 of 2017
State of Uttarakhand & others ... Appellants
vs.
Bhagwan Singh & others ... Respondents
AND
Special Appeal No.84 of 2017
State of Uttarakhand & others ... Appellants
vs.
Roshan Lal Nautiyal & others ... Respondents
AND
Special Appeal No.83 of 2017
State of Uttarakhand & another ... Appellants
vs.
Praveen Kumar Nautiyal & others ... Respondents
AND
Special Appeal No.81 of 2017
State of Uttarakhand & others ... Appellants
vs.
Satpal Singh & another ... Respondents
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AND
Special Appeal No. 80 of 2017
State of Uttarakhand & another ... Appellants
vs.
Manoj Kumar & others ... Respondents
AND
Special Appeal No.77 of 2017
State of Uttarakhand & another ... Appellants
vs.
Retesh Kumar & another ... Respondents
AND
Special Appeal No.79 of 2017
State of Uttarakhand & another ... Appellants
vs.
Meena & others ... Respondents
AND
Special Appeal No.76 of 2017
State of Uttarakhand & others ... Appellants
vs.
Amit Kumar ... Respondent
AND
Special Appeal No.73 of 2017
State of Uttarakhand & others ... Appellants
vs.
Amit Kumar & another ... Respondents
AND
Special Appeal No.75 of 2017
State of Uttarakhand & others ... Appellants
vs.
Jagannath Bijalwan & others ... Respondents
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AND
Special Appeal No.74 of 2017
State of Uttarakhand & others ... Appellants
vs.
Amit Kumar & another ... Respondents
AND
Special Appeal No.171 of 2017
Manoj Kumar & others ... Appellants
vs.
State of Uttarakhand & another ... Respondents
AND
Special Appeal No.173 of 2017
Ale Hasan & others ... Appellants
vs.
State of Uttarakhand & another ... Respondents
AND
Special Appeal No.177 of 2017
Bhagwan Singh & others ... Appellants
vs.
State of Uttarakhand & others ... Respondents
AND
Special Appeal No.174 of 2017
Jagannath Bijalwan & others ... Appellants
vs.
State of Uttarakhand & others ... Respondents
AND
Special Appeal No.334 of 2017
Retesh Kumar & another ... Appellants
vs.
State of Uttarakhand & another ... Respondents
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Mr. J. P. Joshi, Sr. Addl. Advocate General with Mr. Gajendra Tripathi, Brief
Holder for the State of Uttarakhand.
Mr. Rakesh Thapaliyal, Advocate with Mr. Vijay Kumar and Mr. Niranjan Bhatt,
Advocates for the private parties.
JUDGMENT
Coram : Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Per : - Hon'ble Sharad Kumar Sharma, J.
1. Since all above-mentioned Special Appeals have arisen out of the common judgment rendered by the learned Single Judge of this Court, hence, all appeals are being taken up together for adjudication by this common verdict.
2. The Special Appeals in question emanates from the judgment rendered by learned Single Judge on 18.12.2016 passed in WPSS No.1730 of 2014 & connected petitions, whereby a bunch of writ petitions has been decided by learned Single Judge and the issue involved was of filling of "carry forward vacancies", belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC) in the process of recruitment for primary school teachers likely to be conducted by the State. The controversy pertaining to the rights of Shiksha Mitras or Shiksha Acharyas on an identical pedestal has already been decided by Hon'ble Apex Court in Civil Appeal No.9529 of 2017 State of U.P. & another vs. Anand Kumar Yadav & others and other connected matters.
3. On an identical issue arising out of judgment of the learned Single Judge as well as the Division Bench of Allahabad High Court as rendered on 12.09.2015 in Writ Appeal No.34833 of 2015 & connected matters. An order was passed by Allahabad -5- High Court, which was put to challenge in Appeal were as follows:
"(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside.
(ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and"
4. By the said judgment as settled by the Hon'ble Supreme Court, it has been held that in view of the provisions contained under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the 'Act') read with the National Council for Teacher Education Act, 1993 (hereinafter referred to as the NCTE), the candidate applying for appointment are necessarily required to have qualified of Teacher Eligibility Test (TET). Since the Shiksha Mitras and Shiksha Acharyas have not completed their TET examination, it was held that no relaxation in recruitment to Shiksha Mitras and Shiksha Acharyas could be granted so far as the compulsory qualifying TET examination is concerned. In the writ petition filed by the petitioners before this Court, the petitioners have sought the following reliefs :
-6-"I. Issue a writ, order or direction in the nature of certiorari quashing the Clause 4 (Ga) of the advertisement dated 17th February 2016 issued by the respondents for supplying the vacancies on the post of Assistant Teacher in Govt. Primary Schools inasmuch as the advertisement has been issued in violation of Section 3(2) of the Act of 1994 as well as contrary to the provisions of Article 14(4-B) of the Constitution of India, as there is no bifurcation of vacancies in respective reserved categories as well as backlog vacancies, more particularly for ST category.
II. Issue a writ, order or direction in the nature of mandamus directing the respondents to issue the advertisement / corrigendum of the advertisement dated 17th February 2016 for supplying 141 backlog vacancies in ST category in the cadre of Assistant Teacher (Elementary Education) Govt. Primary Schools, in order to discharge the statutory obligation imposed on the respondents by the Act of 1994 and as per provisions of Article 16(4-B) of the Constitution of India."
5. In the writ petition, the petitioners have pleaded that an issue also crept in before this Court earlier phases of litigation pertaining to the filling of backlog vacancies of the Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC), which came up for consideration by way of Writ Petition (S/S) No.332 of 2012 as decided by this Court on 06.09.2013, in which, learned Single Judge had passed the following directions:
"6. It is admitted case that 677 backlog seats reserved for Scheduled Caste and 210 seats reserved for Scheduled Tribes are still lying vacant. No steps have been taken by the Government for filling up the backlog seats. No valid reason has been disclosed in the counter affidavit for not filling up those backlog seats. The inaction on the part of -7- the respondents for not filling up the vacant seats reserved for Scheduled Castes and Scheduled Tribes is not only arbitrary, but at the same time, it is also against the public interest. Several hundred posts of Assistant Teacher have not been filled for last few years. The Scheduled Castes and Scheduled Tribes candidates, who have done their B.T.C. and Special B.T.C. course, have passed the T.E.T. examination and are eligible for appointment, are being deprived by the inaction of the respondents. Considering all these facts, I direct the respondents to start process immediately for filling up all backlog seats reserved for Scheduled Caste, Scheduled Tribe and Other Backward Classes and complete the same within a period of nine months from the date of production of certified copy of the order."
6. When during the pendency of the writ petition, which was decided on 06.09.2013, the selection process was being resorted to by the respondents without disclosing as to whether it included in it the backlog vacancies or not because the Principal Secretary, School Education on 30.04.2014 issued a Government Order for appointment of the Assistant Teachers inviting applications from the candidates, who possess B.Ed. degree and have qualified TET-1 examination. This selection process was resorted to only for the purposes of B.Ed. qualified candidates, but the vacancies thus notified in pursuance of the G.O. dated 11.01.2014 did not mention anywhere that the advertised vacancies include the backlog vacancies of reserved candidates, more particularly of the Scheduled Castes category. It has also been the case of the petitioners in the writ petition that the vacancies as notified in the advertisement of 2014 was not filled up in the light of the judgment rendered by the Division Bench of this Court in a special appeal (Trivenichand Pandey vs. State of -8- Uttarakhand) as the vacancies have been permitted to be included in the vacancies advertised on 01.04.2014.
7. The Director, Elementary Education, Uttarakhand without looking into the earlier directions issued by the Division Bench proceeded to issue advertisement dated 17.02.2016 inviting applications from B.Ed. qualified candidates for filling of 625 posts of Assistant Teacher in the Government Primary Schools. The case of the petitioner in the writ petition was that sub- section (3) of Section 2 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, lays out that "the unfilled vacancies of reserved category candidates for a particular recruitment year has to be carried forward and to be filled through special recruitment drive of the same year or succeeding year of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together along with the vacancies of the succeeding recruitment year". This controversy resulted into the filing of bunch of writ petitions, which have been decided by the learned Single Judge, vide impugned judgment in the instant appeal.
8. The Hon'ble Apex Court, by its recent judgment dated 25.07.2017 passed in Civil Appeal No.9529 of 2017 titled as State of U.P. & another vs. Anand Kumar Yadav & others and in connected matters, has observed the following:
"26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some -9- weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides."
9. Meaning thereby, despite the fact that the Shiksha Mitras and Shiksha Acharyas, who held out to be not an appointee against a regular post and not eligible to hold the post, Hon'ble Apex Court has granted them a liberty to participate in two consecutive recruitments subject to the condition that they avail the qualification of TET for the proposed selection. Their participation in the process of selection was subject to the condition of acquiring the TET qualification. The Hon'ble Apex Court has also observed that they may be granted suitable age relaxation and some weightage for their experience may be decided by the concerned authority. On an overall scrutiny having qualification of TET has now become inevitable for being appointed as Primary school teacher.
10. In the bunch of writ petitions, which came up for consideration before the learned Single Judge, an identical issue was involved with regard to the filling of existing backlog vacancies of teachers in the Education Department. Primarily, the question related to the filling of backlog vacancies reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC). The contention of the petitioners was that the backlog vacancies, which have been carried forward under the reserved category, have not yet been filled. According to the breakups given (though it may not be the exact figure), it shows that the backlog vacancies of the Scheduled Castes as carried forward in the previous year was 1030 posts and that of Scheduled Tribes it was 210, which was carried from the previous year selection. The issue as agitated earlier too came up for -10- consideration before the Court in Writ Petition (S/S) No.332 of 2012, which was disposed of by this Court on 06.09.2013 (as quoted above) directing the respondents to complete the selection process within a period of nine months. In the selection process of 2014, the Scheduled Castes vacancies were determined to be 741, that of Scheduled Tribes as 114 and OBC as 41.
11. After the initiation of the exercise of appointment in 2014, which took place in 2016, it was primarily related to B.Ed. qualified candidates, who had the last opportunity to participate in the selection before the deadline given by the NCTE and the exemptions granted thereof could cease to exist beyond 2016. As a consequence of the selection process, the State contended by way of supplementary counter affidavit filed before the learned Single Judge on 30.09.2014, that in the State of Uttarakhand, the total strength of primary school teachers is 20,434. As per the roster, the State has accepted the fact that the Scheduled Castes vacancies would be 3,885 and that of Scheduled Tribes 820 and OBC 862.
12. The petitioners tried to contend in Writ Petition (S/S) No.476 of 2016 that according to the counter affidavit of the State, 2058 posts reserved for the Scheduled Castes and 214 for Scheduled Tribes are still lying vacant, but as far as the posts reserved for OBC is concerned, the stand of the State was that the said posts are already occupied in excess. The contention of the petitioners that the existence of a vacancy against the Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC) as against total cadre it will in itself not amount to be a backlog vacancy, in as much as for the purpose of determining the backlog vacancy, the criteria has been enunciated by the judgment rendered by Hon'ble Apex Court in State of Uttar Pradesh & others vs. Sangam Nath Pandey & others -11- reported in (2011) 2 SCC 105, in which it was held in para 33 & 34:
"33. A harmonious construction of sections 2(d), 3(2) and 3(5) would lead to the conclusion, as stated by the Division Bench, that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject matter of advertisement but remained unfilled because of non- availability of suitable. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy.
34. Section 2(d) defines a period of 12 months commencing on 1 st of July of a year as a year of recruitment for calculation of the number of vacancies. Section 3(1) gives the different percentages of vacancies, which are reserved for different categories of backward class candidates. The percentage of vacancies reserved under Section 3(1) had to be filled according to the roster mechanism provided under sub-section 5 of Section
3. Section 2(d) would tend to indicate that the State was required to determine the number of available vacancies in every year of recruitment. Once the vacancies are determined, necessary requisition would have to be sent to the Public Service Commission for initiating the process of selection."
13. For the purposes of determining the backlog vacancies, the backlog vacancies are those vacancies as against the Scheduled Castes, Scheduled Tribes and Other Backward Classes -12- (OBC) or other reserved category, which after the culmination of selection process of particular selection process of a selection year, remains unfilled due to non-availability of suitable candidates and it is this vacancy is carried forward to the forthcoming selection. The argument that the backlog vacancies will include the vacancies as a whole is not acceptable in terms of the ratio propounded in Sangam Nath Pandey's case (supra). The learned Single Judge, after considering the interplay of the Right of Children to Free and Compulsory Education Act, 2009 and the National Council for Teacher Education Act, 1993, has rightly held that the Teachers Eligibility Test (TET) is mandatory to make a candidate eligible to participate in the selection process and to become an elementary school teacher. The learned Single Judge in para 15 of the judgment has held as under:
"15. Consequently, all the posts which are presently been occupied either by a "Shiksha Acharya" or by a "Shiksha Mitra", shall be deemed to be vacated, and on those posts the duly selected candidates from each category shall be forthwith appointed. In case, there are no selected candidates as of now, these vacancies must be declared vacant and duly advertised, so that selection and appointment can be made on these posts as expeditiously as possible, but definitely within a period of two months from the date of production of a certified copy of this order."
14. The learned Single Judge also observed that the post of Siksha Mitras and Siksha Acharyas, who have been appointed as primary teachers to meet a contingency of shortage also called as para teachers, would be deemed to be vacated and these posts shall be filled by selected candidates so far it relates to backlog vacancies. Since the Hon'ble Apex Court, while considering the issue pertaining to Shiksha Mitras and Shiksha Acharyas, has granted latitude in para 26, the observation made by learned -13- Single Judge, treating the posts held by Shiksha Mitras and Shiksha Acharyas to be deemed vacant deserves to be set aside. (would be affected by the Apex Court judgment though rendered at later stage) The reason being that by the time judgment was rendered by learned Single Judge, at that point of time, i.e., on 08.12.2016, the judgment dated 25.07.2017, as rendered by Hon'ble Apex Court was not in existence, it was delivered later and that is why the observation has been made in para 15 of the judgment treating the said posts held by Shiksha Mitras and Shiksha Acharyas as to be vacant.
15. But, now looking to the subsequent development in the light of the judgment rendered by Hon'ble Apex Court on 25.07.2017, since a breathing time has been granted to the Shiksha Mitras and Shiksha Acharyas, this Court feels that the aforesaid clause treating the posts held by them to be vacant deserves to be quashed and the Shiksha Mitras and Shiksha Acharyas, who fulfill the conditions as provided by the Apex Court and who fulfill the conditions subsequently by making themselves eligible after qualifying TET will deemed to be considered in terms of the findings recorded by the learned Single Judge by holding the selection process as against the backlog vacancies available to Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC), strictly in terms of the provisions of reservation and the ratio provided therein.
16. Hence, we are of the considered view that the findings given in para 15 of judgment under challenge that the posts held by the Shiksha Mitras and Shiksha Acharyas shall be deemed to be vacant has now become irrelevant in the light of the judgment rendered by Hon'ble Apex Court in Civil Appeal No.9529 of 2017 & connected matters on 25.07.2017. Consequently, the said part of the judgment only as rendered by learned Single Judge -14- declaring the post held by Shiksha Mitras and Shiksha Acharyas as deemed vacant becomes nonest and is hereby modified on the basis of the aforesaid judgment of Hon'ble Apex Court. So far as the directions given by the learned Single Judge for concluding the selection process of backlog vacancies from the date of production of the certified copy of the order, this Court finds that filling of backlog vacancies within the specified period do not suffer from any apparent error, because admittedly the unfilled posts had been carried forward and they deserve to be fulfilled in the wider interest of the State and elementary education. All Special Appeals are being finally disposed of in terms of the following directions:
(i) The selection process for backlog vacancies is to be strictly carried in the light of the directions issued by the learned Single Judge, as that part of the judgment is upheld.
(ii) Since the posts held by the Shiksha Mitras and Shiksha Acharyas, which has been declared by learned Single Judge as to be deemed vacant, has been set aside by us, these Shiksha Mitras and Shiksha Acharyas, who are working and have qualified their TET, will have to be considered for appointments subject to the condition they fulfill the conditions given in para 26 of the judgment rendered by Hon'ble Apex Court on 25.07.2017.
(iii) The concerned authorities will ensure that the appointment of the primary school teachers even as against the backlog vacancies is done strictly in accordance with the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and the NCTE.
-15-17. Subject to the above observations, all Special Appeals stand disposed of and the mandamus is issued to the authorities concerned to conclude the selection process as against the reserved category candidates against the backlog vacancies within time provided by learned Single Judge from date of judgment. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) Dated 04th September, 2017 Rawat