बेसिक शिक्षा परिषद के विद्यालयों में शिक्षक भर्ती पर लगी रोक हटाने सम्बन्धी हाईकोर्ट का आदेश आया, आदेश डाउनलोड करें एवं देखें अहम् बिंदु:
Date of Decision - 3/11/2017
Court Number - 43
Judgment Type - Final AFR
Coram - Hon'ble Pradeep Kumar Singh Baghel,J.
Petitioner's Counsels - Seemant Singh
Respondent's Counsel - C.S.C. and Ashok Kumar Yadav
AFR
Reserved
Court No.- 43
Case :- WRIT - A No. - 27870 of 2017
Petitioner :- Neeraj Kumar Pandey & Another
Respondent :- State Of U.P. & 3 Others
Counsel for Petitioner :- Seemant Singh
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With:
Writ-A Nos.---22032 of 2017, 29206 of 2017, 30557 of 2017, 32332 of 2017, 32333 of 2017, 35667 of 2017, 36416 of 2017, 36823 of 2017, 36824 of 2017, 36830 of 2017, 37154 of 2017, 37455 of 2017, 38425 of 2017, 38729 of 2017 and 40150 of 2017.
____
Hon'ble Pradeep Kumar Singh Baghel,J.
This batch of petitions involves similar question of law, therefore, the same are being disposed of by this common order. For the sake of convenience Writ-A No. 27870 of 2017 (Neeraj Kumar Pandey & Another v. State of U.P. & 3 others) is taken as lead petition.
The salient and necessary facts of the case are; the State Government took a decision to appoint Assistant Teachers (Science and Mathematics) in Senior Basic Schools (Upper Primary Level Schools) run and conducted by the U.P. Board of Basic Education1 (Basic Shiksha Parishad).
The State Government exercising its power under Section-19 of the U.P. Basic Education Act, 1972 (U.P. Act No. 34 of 1972) has framed the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, which governs the recruitment, qualification and service conditions of teachers employed in the Basic Schools run and conducted by the Board.
A Government Order dated 11.7.2013 was issued laying down the criteria for the selection of 50% posts of Assistant Teachers, Science and Mathematics by direct recruitment. Thus total 29334 posts were advertised. Out of the said 50%, 14667 posts for Mathematics and equal number viz. 14667 posts were for Science.
In the said Government Order amongst other the eligibility, age, reservation and the process of recruitment were provided. The said recruitment was to be completed within a time-schedule provided therein. According to which the District Basic Education Officers were required to issue the advertisement on 19.8.2013 and the first counselling was to commence from 4.10.2013 and within 15 days of counselling the verification of the original documents and the medical was scheduled. It was also provided that within two days from the medical examination, the appointment letters shall be issued and posting will be made. A copy of the Government Order dated 11.7.2013 is on the record as annexure-1 to the writ petition. The petitioners made applications pursuant to the said advertisement.
The State Government issued another Government Order dated 23.8.2013 in respect of the same selection, wherein after the counselling the District Basic Education Officers of various districts issued cut-off marks on the basis of merit of the unreserved and reserved category candidates.
The petitioners claim that their marks were above the last cut-off marks. In the instant petition2, the petitioner no. 1 claims that he had obtained 66.08 marks under the unreserved category while the cut-off marks of unreserved category in Mathematics was 65.88 marks. The petitioner no. 2 had also applied for the appointment of Assistant Teacher in Mathematics. He claimed that his cut-off marks is 66.23 under the unreserved category thus both the petitioners were eligible for counselling in District Kushinagar and Allahabad. It is stated that the petitioners were invited in fifth round of counselling and they claimed that their testimonials were verified on 21.10.2014. A copy of the receipt is on the record.
On 30.12.2016 the Secretary of the Board issued a communication addressed to all the District Basic Education Officers of the State, wherein it was mentioned that in several representations it has been pointed out that in some of the districts a large number of posts are lying vacant. The District Basic Education Officers were directed to complete the recruitment process in respect of the vacant posts. It was also directed that the candidates who have secured 82 marks in Teachers Eligibility Test Examination in seventh round counselling and they were issued appointment letters but if for some reasons they were not able to join their posts, they may be given an opportunity to join on or before 10.1.2017. After giving them opportunity, if posts remain vacant, in that event the candidates who had participated in the counselling but whose marks were below the cut-off marks, they may also be offered appointment against the remaining vacant posts.
In compliance of the circular dated 30.12.2016 the District Basic Education Officers initiated proceedings to fill up the posts but that was deferred due to notification of the Election Commission as the Modal Code of Conduct was enforced in the State due to the ensuing elections of Legislative Assembly which were scheduled to be held in March, 2017.
After the Legislative Assembly Elections were over, vide communication dated 17.3.2017 the Secretary again issued a circular addressed to all District Basic Education Officers to comply with the earlier directions dated 30.12.2016 since the elections were over. However, after issuance of the circular dated 17.3.2017 within ten days another circular was issued by the Secretary on 23.3.2017 whereby he has issued directions to the District Basic Education Officers to stop the recruitment process till further orders. The petitioners being dissatisfied with the circular of the Secretary dated 23.3.2017 have instituted the petitions in this batch.
Similarly, vide Government Order dated 15.12.2016 the State Government has taken a decision for the recruitment on 4000 posts of Assistant Teachers (Urdu Language) out of 16460 posts of Assistant Teachers in Basic Schools run by the Board. The said Government Order was followed by a circular dated 28.12.2016 issued by the Secretary of the Board. In the said circular a specific schedule was mentioned for completing the aforesaid process of selection. On 26.12.2016 the guidelines were also issued by the Secretary of the Board giving detailed directions to be followed in finalizing the said selection. A copy of the said circular is on the record. A perusal of the guidelines dated 16.12.2016 indicates that the entire selection is based upon quality point marks awarded on the academic qualification possessed by the individual candidate.
The petitioners in the companion writ petitions claimed that they were fully qualified in terms of the said Government Order and the guidelines, hence they made on-line applications for consideration of their appointment as Assistant Teachers (Urdu). They also claim that they possess Moallim-e-Urdu from Jamia Islamia, Aligarh prior to 11.8.1997 and they have also passed UP TET (Urdu) subject (Primary Level). They are also aggrieved by the circular dated 23.3.2017 issued by the Secretary, Basic Education for staying the entire recruitment process.
In Writ-A Nos. 37154 of 2017 and 38729 of 2017 the grievance of the petitioners is that the State Government vide Government Order dated 16.6.2016 directed to initiate the recruitment process for appointment against 16448 posts. It is stated that in compliance thereof a circular was issued by the Secretary, Basic Shiksha Parishad initiating recruitment process and the petitioners have made an applications pursuant to the advertisement issued on the basis of said Government Order. The petitioners are aggrieved by the order dated 23.3.2017 whereby recruitment process has been kept in abeyance.
In Writ-A No. 29206 of 2017 the petitioner sought permission from the BSA to fill up the posts of Assistant Teachers in a Junior High Schools run by the Committee of Management. The BSA vide order dated 8.6.2017 has declined to give permission on the ground that the Secretary vide impugned order dated 23.3.2017 has stayed the recruitment process.
In one of the writ petitions being Writ-A No. 40150 of 2017 the State Government had initiated the recruitment process for the appointment of Anshkalik Instructors on contract basis. A detailed direction / guideline has been laid down for their engagement, however, by the same impugned order dated 23.3.2017 the process of recruitment has been stayed by the State Government.
Later, on 23.5.2017 the Secretary in another circular issued a direction that his earlier order dated 23.3.2017 shall not be applicable in respect of the appointment of Trainee Teachers in compliance of the order of the Supreme Court. Regard being had to the fact that the selection of trainee teachers was held in pursuance of the Government Order dated 11.7.2013 against about 72000 vacancies.
On 12.6.2017 the Director, State Counsel of Education Research and Training3 in a communication addressed to the Principals of some of the District Institutes of Education & Training issued similar directions in respect of trainee teachers which was initiated in pursuance of Government Order dated 11.7.2013.
In the meantime some of the candidates, who had applied for the appointment on the posts of Assistant Teachers (Mathematics and Science) in pursuance of the Government Orders dated 11.7.2013 and 23.8.2013, preferred writ petitions in this Court for a direction upon the respondents for their appointment against the vacant posts. In Writ-A Nos. 56047 of 2016 (Manoj Kumar Singh and others v. State of U.P. and others) and 54782 of 2016 (Alok Kumar and others v. State of U.P. and others) directions were issued to the Director of Education (Basic) to consider their grievance.
In compliance of the order passed by this Court in Writ-A No. 54782 of 2016, the Director passed an order on 13.1.2017, wherein he has taken note of the circular issued by the Secretary, Basic Education dated 30.12.2016 for completing the recruitment against the vacant posts, hence the representation was disposed of by the Director in terms of the circular dated 30.12.2016 issued by the Secretary.
The impugned order dated 23.3.2017 has been assailed in this batch of writ petitions whereby the recruitment process against the vacant posts has been stopped. In the said order no reason has been mentioned hence this Court directed the Secretary, Basic Education to file an affidavit disclosing the reason for stopping the recruitment process.
In compliance of the order of this Court an affidavit is filed, wherein the stand taken amongst other is that on the oral order received from the State Government, the process of appointment/ posting of teachers has been withheld for the time being by the Board across the State. The other reasons mentioned in the affidavit are that after the enforcement of the Right of Children to Free and Compulsory Education Act, 20094 (Act no. 35 of 2009), the State Government exercising its power under Section 38 of the said Act has framed U.P. Right to Education Rules, 2011.
It is stated that after the enforcement of the provisions of the Act, 2009 a school-wise determination of teachers and the students ratio has been done in the academic session 2017-18 and on the basis of the said determination of school-wise strength of teachers as far as it came to in light that strength of students in every institution is not as per proportion contained in the Schedule of the Act, 2009 as in some of the Institutions the number of teachers have been found to be in excess whereas in other institutions there are shortage of teachers hence a Government Order has been issued on 13.6.2017 for adjustment/ transfer of the teachers in terms of the Schedule of the Act, 2009.
It has also been stated that the Board has issued instructions as per oral directions received from the State Government and there is no ulterior motive or intention for issuing the said directions.
In spite of the time granted to the learned Standing to obtain instructions from the State, he has not received any instruction. A statement was made by the learned Standing Counsel that the Principal Secretary, Basic Education and other authorities have also been informed but no instruction has been received from them except from the Secretary, U.P. Board of Basic Education.
A rejoinder affidavit has been filed to the Short Counter Affidavit of the Secretary of the Board.
I have heard Sri Seemant Singh, Ashwani Kumar Yadav, Sri Mithilesh Kumar Maurya, learned counsel for the petitioners, learned Standing Counsel and Sri A.K. Yadav & Sri Bhanu Pratap Singh, learned counsel for the Board.
Learned counsel for the petitioners submits that the petitioners have applied in pursuance of the Government Order dated 11.7.2013. They were called for counselling and they have secured more marks than the cut-off marks in their respective districts where they had applied. The second respondent on 30.12.2016 had issued a direction to all the District Basic Education Officers to complete the recruitment process against the vacant posts. Initially due to the Model Code of Conduct enforced by the Election Commission the selection was stopped but on 23.5.2017 the second respondent issued directions for completing the process of recruitment as the ban was lifted.
He further submitted that the impugned order dated 23.3.2017 has been passed only on the ground that after the Legislative Assembly Elections, there is change of Government and on the oral instructions of the State Government, the entire process of recruitment has been abruptly stopped. It is stated that the said decision is arbitrary and illegal. He has further submitted that the Director, SCERT in the order dated 13.1.2017, which he has passed in compliance of the order of this Court, has mentioned that the Secretary has already issued directions to the District Basic Education Officers for completing the process of selection hence no further order is required to be passed.
Lastly, it was strenuously urged that by a similar oral direction the State Government had directed the U.P. Secondary Education Services Selection Board not to declare the result of selection/ interview of pending examination. The said decision was challenged in Writ-C No. 20421 of 2017. In the said writ petition the Principal Secretary, Secondary Education was directed to file his personal affidavit. In compliance thereof the Principal Secretary, Secondary Education has filed his affidavit wherein it was stated that he did not issue any direction to the Commission to stop the declaration of the result of the selection / interview or pending examinations. It is contended that thereafter the Commission has declared the result of the selection.
It was further submitted that the State Government has already determined number of posts to be filled up amongst the eligible candidates for 14667 Mathematics teachers and equal number of Science teachers in Senior Basic Schools, hence only on the ground that the Government has changed, the position of the vacancies will not be changed. Learned counsel for the petitioners has placed reliance on a judgment of the Supreme Court in the case of Jitendra Kumar and Anr. v. State of Haryana and others, Appeal (Civil) No. 5803 of 2007, dated 11.12.2017.
Learned counsel for the respondents have referred the averments made in paragraph nos. 4, 5, 6 and 7 of the short counter affidavit.
I have considered the submissions of learned counsel for the parties and perused the record.
As regards the averment mentioned in the short counter affidavit that in terms of the Act of 2009 the exercise is going on for the transfer and adjustment of the teachers in terms of Schedule of the Act, 2009, appears to be beside the point. The rules were made by the State Government and the Central Government in the year 2010-11. More than five years have passed. The said exercise is only in respect of adjustment and transfer of the teachers. The State Government after the enforcement of its Rules in 2010 has undertaken the determination of the vacancies in Basic Schools and has found that 29334 teachers of Mathematics and Science are required to be appointed. The said policy decision of the State Government must have based on the material before it.
The State Government has not issued any subsequent Government Order reducing the number of posts or has taken any decision exercising its power under the U.P. Basic Education Act, 1972 issuing directions to the Board to stop selection on the ground mentioned in the Short Counter Affidavit.
In addition to above, the impugned order dated 23.3.2017 does not disclose any reason. It is a trite that the reason cannot be supplied by the affidavits. Reference may be made to the judgment of the Supreme Court dated Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405, thus the aforesaid ground mentioned in the affidavit of the second respondent is also not sustainable for the reasons mentioned above.
Learned counsel for the respondents submits the impugned order has been passed on the oral instructions of the State Government and has also tried to justify the impugned order on the ground that vide Government Order dated 13.6.2017 the process for adjustment and transfer is underway.
Learned counsel for the petitioners in his rejoinder affidavit submitted that the Government Order dated 13.6.2017 has no bearing in the process of selection as it deals with only adjustment and transfer of the excess teachers. The advertisement for 29334 vacancies have been made after verifying the vacancies which were in existence, hence the said Government Order has nothing to do with the recruitment process. In case it is found that in any Institution the number of teachers is in excess, they can be transferred/ absorbed in other Institution where there is a shortage of teachers.
I have considered the submissions of learned counsel for the parties and perused the record.
The parties are not in conflict on the fact that a large number of posts of Assistant Teachers are lying vacant in the Basic Schools (Senior Basic Schools/ Upper Primary Schools) run by the Board. Most of these schools are in rural area where students from marginalized section of the society are getting their elementary education.
The Government Order dated 11.7.2013 was issued after undertaking an exercise of determination of vacancies in Senior Basic Schools. Mathematics and Science are important subjects which are imparted in Senior Basic Schools. Vacancies in the said subjects adversely affects the studies of the students of Science stream. The process of selection was started in the year 2013 and after Seventh round of counselling it was found that still a large number of posts are lying vacant. Keeping in view of the said facts the second respondent had issued a circular dated 30.12.2016 to all the District Basic Education Officers to complete the recruitment process by allowing the selected candidates to join their posts by 10.1.2017 and thereafter to issue appointment letters to remaining candidates who had participated in the counselling against the vacant posts. The said exercise could not be completed due to enforcement of the Model Code of Conduct during Legislative Assembly Elections which were conducted in March, 2017.
After the elections were over, a fresh direction was issued by the second respondent on 17.3.2017 to comply with the circular dated 30.12.2016 but after few days a cryptic order was passed by him that all further proceedings of the recruitment be stayed. In the said order which is on the record as Annexure No. 6 to the writ petition, there is no mention that it has been issued by the second respondent in compliance of the directions of the State Government. In his affidavit the second respondent has mentioned that on the oral instructions of the State Government the said order has been passed. Relevant part of the Short Counter Affidavit is extracted herein-below:
"6...
(ii) Accordingly, on the oral orders received from the State Government, the process of appointment/ posting of new teachers has been withheld for the time being by the Board across the State.
7. ...such steps have been bonafidely taken by the Board for the time being as per oral instructions received from the State Government and not with any ulterior motive or intention. However, if this Hon'ble Court comes to the conclusion that any act or omission of the deponent as Secretary, Board of Basic Education, U.P., Allahabad is coming in the way of justice, he is tendering his unconditional and unqualified apology for the same before this Hon'ble Court and the same is deeply regretted..."
The stand taken by the second respondent that on the oral instructions the recruitment process has been stopped, does not stand to the reasons. The recruitment of teachers in Basic Schools are governed under the statutory provisions. The Rules, 1981 provides the detail procedure for the recruitment and other service conditions.
The Basic Schools are governed under the provisions of the Act, 1972. Section-4 of the said Act enumerates the functions of the Board. Section-4 reads as under:
"4. Function of the Board.---(1) Subject to the provisions of this Act, it shall be the function of the Board to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State, to raise its standards and to correlate it with the system of education as a whole in the State.
(2) Without prejudice to the generality of the provisions of sub-section (1), the Board shall, in particular, have power-
(a) to prescribe the courses of instruction and books for basic education and teachers' training therefor;
(b) to conduct the junior high school and basic training certificate examinations and such other examinations as the State Government may from time to time by general or special order assign to it and to grant diplomas or certificates to candidates successful at such examinations;
[(c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by [the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities" in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board];
(d) to exercise supervision and control over basic schools, [District Institute of Education and Training], basic training certificate units and the State Institute of Education;
(e) to accord approval (with or without modification) to the schemes prepared by the [Gaon Shiksha Samitis, Zila Panchayats or Municipalities] for the development, expansion and improvement of and research in basic education in any district or in the State or in any part thereof];
(f) to acquire, hold and dispose of any property, whether movable, or immovable and [* * *];
(g) to receive grants, subventions and loans from the State Government;
[(g-1) subject to the general control of the State Government to issue directions not inconsistent with this Act, to Gaon Shiksha Samitis, Gram Panchayats, Zila Panchayats or Municipalities in the performance of their functions under this Act];
(g-2) [* * *];
(h) to take all such steps as may be necessary or convenient for, or may be incidental to, the exercise of any power, or the discharge of any function or duty conferred or imposed on it by this Act:
[Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act.]"
By the U.P. Ordinance No. 4 of 2000 dated 11.2.2000 now Sections 9A, 10, 10A and 11 have been inserted in Uttar Pradesh Basic Education Act, 1921 regarding functions of Zila Panchayat, Municipalities, Gram Panchayats regarding the place, properties and assets of the Basic Schools in their area.
Section 12 of the Act, 1972 enjoins that the Director shall have the control over the Basic Schools and he may direct the Management of Basic Schools to remove defect or deficiency found on inspection or otherwise and on his recommendation the Board can withdraw the recognition of the schools which is found to be deficient in fulfilling the norms laid down under the Rules, Guidelines of the Board.
Section 13 of the Act, 1972 provides that the Board shall carry out directions issued to it from time to time by the State Government for the efficient administration of this Act and if a dispute arose between the Board and the State Government or between the Board or local body, the decision of the State Government on such dispute shall be final and binding on the Board. The Board is under obligation to furnish such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act.
Section 17 gives a power to the State Government that if any difficulty arises in giving effect to the provisions of the Act, it may by a notification in the gazette make provision to carry out the object of the Act. The sub-section (2) of Section 17 of the Act provides that no order under sub-section (1) shall be made after expiration of the period of two years from the date of commencement of Uttar Pradesh Basic Education (Amendment) Ordinance, 2000. Section-17 reads thus:
"17. Power to remove difficulties. - (1) If any difficulty arises in giving effect to the provisions of this Act or by reason of anything contained in this Act the State Government may, as occasion requires, by notification in the Gazette, make such incidental or consequential provisions, including provisions for adapting or modifying any provisions of this Act or of any enactment by or under which any local body is constituted but affecting the substance as it may think necessary or expedient for the purposes of this Act.
(2) No order under sub-section (1) shall be made ["after the expiration of the period of two years from the date of commencement of the Uttar Pradesh Basic Education (Amendment) Ordinance, 2000]"
(3) Every order made under sub-section (1) shall be laid, as soon as may be before both the Houses of the State Legislature."
From a perusal of the scheme of the Act it is evident that the Board has been entrusted the functions to control the Basic Schools in the State as it has power to prescribe the courses for instructions for teachers' training to conduct the basic training examinations and other examinations, grant of diploma or certificate to the candidates as laid down by general or special orders in respect of the administration of the Institution and it has a general power of the supervision and control over the Basic Schools including District Institutes of Education and Training.
No doubt, the State can issue directions under Section 13 of the Act to the Board for the efficient administration of the Act. In the instant case the State has not come forward with a case that it has issued any oral direction to the Board in exercise of its power under Section 13 of the Act. In the short counter affidavit sworn by the Secretary of the Board it is mentioned that he has issued the impugned order on the oral instructions of the State. In the affidavit, he has not specified the authority who has issued oral directions. A statutory power conferred upon the State Government cannot be exercised in such a manner under the Scheme of the Act, 1972. The State has no authority to issue any oral order. It needs no elaboration that the executive order can be issued in terms of Article 162 of the Constitution after following the procedure provided under the law. Admittedly, no such order has been issued by the State.
The selection process was initiated pursuant to the decision of the State Government vide Government Order dated 11.7.2013 and 23.8.2013, hence, if the State Government, later on, took a decision to stop the process of selection, it could have issued an appropriate order to discontinue the selection. No such order has been passed by the State Government.
It appears that similar oral directions were issued to the U.P. Secondary Education Services Selection Board. In Writ-C No. 20421 of 2017 the Principal Secretary was directed to file his personal affidavit who has denied to issue any such directions. Consequently, the U.P. Secondary Education Services Selection Board has declared the result of the Assistant Teachers L.T. Grade and others.
During the course of submissions Sri Bhanu Pratap Singh, learned Advocate appearing for the Board has passed on an order issued by the State Government dated 11.8.2017. The said order, at his request, has been taken on the record. A perusal of the said order indicates that the Accountant General of India in one of his report has taken note of the fact that in the State of U.P. a number of students enrolled in the year 2012-13 were 3.71 crore which has reduced to 3.64 crore, thus between the years 2010-16 in the Basic Schools the enrollment of the students has declined by 18.6%. This is an alarming situation that in spite of the growth of population, number of students of Junior and Senior Basic Schools are falling down. It is against the spirit of Article 21-A of the Constitution of India and the consequential enactments i.e. the Right of Children to Free and Compulsory Education Act, 2009. It also frustrates the object of Sarva Shiksha Abhiyan, which lays emphasis on the maximum enrollment of children in the Basic Schools. In the said instructions it has been pointed out that the Central Government is not providing sufficient fund to the State Government. Paragraph-7 of the said instructions reads as under:
**7& orZeku esa ifj"knh; izkFkfed fo|ky;ksa esa 399272 f'k{kd@f'k{kkfe= rFkk ifj"knh; mPp izkFkfed fo|ky; esa 164003 f'k{kd@ vuqns'kd bl izdkj ifj"knh; fo|ky;ksa esa dqy 5]63]275 f'k{kd@f'k{kkfe=@vuqns'kd dk;Zjr gSa A buds osru ,oa ekuns; ij vkus okyk foRrh; O;; Hkkj Hkkjr ljdkj ,oa jkT; ljdkj }kjk ogu fd;k tk jgk gS A Hkkjr ljdkj }kjk foRrh; o"kZ 2012&13 ls izkFkfed @ mPp izkFkfed fo|ky; LFkkfir djus gsrq ;k izkFkfed fo|ky;ksa esa voLFkkiuk lqfo/kkvksa ds fodkl gsrq dksbZ Hkh /kujkf'k miyC/k ugha djk;h tk jgh gS A blh ds lkFk o"kZ 2015&16 esa :0 2485-09 djksM+ ,oa foRrh; o"kZ 2016&17 esa 3618-46 djksM+ :i;s Hkkjr ljdkj }kjk jkT; ljdkj dks miyC/k ugha djk;k x;k gS] ftlds dkj.k jkT; ljdkj dks vius Jksrksa ls v/;kidksa ds osru ij opuc) O;; ,oa vU; dk;Zdzeksa ij vko';d O;; djus gsrq vius Jksrksa ls 6103-55 djksM+ :i;s dh vfrfjDr /kujkf'k O;; djuh iM+h gS A**
The declining of number of enrollment of students clearly indicates that the State is not paying due attention to the Basic Education in the light of the constitutional mandate under Article 21-A of the Constitution of India which provides that the children between the age of 6 to 14 years have a fundamental right to receive the education.
As regards the lack of fund is concerned the said ground is not acceptable in view of the Eighty Sixth Amendment in the Constitution by inserting Article 21-A. The issue with regard to the lack of funds has been considered by the Supreme Court in the case of State of H.P. v. H.P. State Recognized & Aided Schools Managing Committees and others, (1995) 4 SCC 507. In the said case also the State of Himanchal Pradesh has expressed its inability to provide grant-in-aid to the private institutions where the children of the age of 6 to 14 years were studying. The Supreme Court held as under:
"17. It is high time that the State must accept its responsibility to extend free education to the children upto the age of fourteen. Right to education is equally guaranteed to the children who are above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same. The State must endeavour to review and increase the budget allocation under the head 'Education'. The Union of India must also consider to increase the percentage of allocation of funds for "Education" out of the Gross National Product."
Regard being had to the fact that the decision of the Supreme Court was prior to the amendment in the Constitution inserting Article 21-A and the enactment of the Act, 2009. Now after the said amendment it is not open to the State Government to take plea of lack of funds in respect of appointments or providing infrastructure to the Basic Schools conducted by the Board. The Constitution casts an obligation on the State Government to provide quality education in the Basic Schools.
For the reasons mentioned above, I find that the oral instructions issued by the State Government for stopping the recruitment process is not justifiable. Accordingly, the order of the Secretary dated 23.3.2017, which is bereft of any reason, is set aside. The Secretary of the Board is directed to complete the process of selection against the remaining vacant posts strictly in terms of earlier respective circulars dated 16.6.2016, 19.9.2016 15.12.2016 and 30.12.2016, expeditiously, preferably within two months from the date of communication of this order.
The writ petitions are, accordingly, allowed.
No order as to costs.
Order Date :-3.11.2017
DS/-
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Date of Decision - 3/11/2017
Court Number - 43
Judgment Type - Final AFR
Coram - Hon'ble Pradeep Kumar Singh Baghel,J.
Petitioner's Counsels - Seemant Singh
Respondent's Counsel - C.S.C. and Ashok Kumar Yadav
AFR
Reserved
Court No.- 43
Case :- WRIT - A No. - 27870 of 2017
Petitioner :- Neeraj Kumar Pandey & Another
Respondent :- State Of U.P. & 3 Others
Counsel for Petitioner :- Seemant Singh
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With:
Writ-A Nos.---22032 of 2017, 29206 of 2017, 30557 of 2017, 32332 of 2017, 32333 of 2017, 35667 of 2017, 36416 of 2017, 36823 of 2017, 36824 of 2017, 36830 of 2017, 37154 of 2017, 37455 of 2017, 38425 of 2017, 38729 of 2017 and 40150 of 2017.
____
Hon'ble Pradeep Kumar Singh Baghel,J.
This batch of petitions involves similar question of law, therefore, the same are being disposed of by this common order. For the sake of convenience Writ-A No. 27870 of 2017 (Neeraj Kumar Pandey & Another v. State of U.P. & 3 others) is taken as lead petition.
The salient and necessary facts of the case are; the State Government took a decision to appoint Assistant Teachers (Science and Mathematics) in Senior Basic Schools (Upper Primary Level Schools) run and conducted by the U.P. Board of Basic Education1 (Basic Shiksha Parishad).
The State Government exercising its power under Section-19 of the U.P. Basic Education Act, 1972 (U.P. Act No. 34 of 1972) has framed the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, which governs the recruitment, qualification and service conditions of teachers employed in the Basic Schools run and conducted by the Board.
A Government Order dated 11.7.2013 was issued laying down the criteria for the selection of 50% posts of Assistant Teachers, Science and Mathematics by direct recruitment. Thus total 29334 posts were advertised. Out of the said 50%, 14667 posts for Mathematics and equal number viz. 14667 posts were for Science.
In the said Government Order amongst other the eligibility, age, reservation and the process of recruitment were provided. The said recruitment was to be completed within a time-schedule provided therein. According to which the District Basic Education Officers were required to issue the advertisement on 19.8.2013 and the first counselling was to commence from 4.10.2013 and within 15 days of counselling the verification of the original documents and the medical was scheduled. It was also provided that within two days from the medical examination, the appointment letters shall be issued and posting will be made. A copy of the Government Order dated 11.7.2013 is on the record as annexure-1 to the writ petition. The petitioners made applications pursuant to the said advertisement.
The State Government issued another Government Order dated 23.8.2013 in respect of the same selection, wherein after the counselling the District Basic Education Officers of various districts issued cut-off marks on the basis of merit of the unreserved and reserved category candidates.
The petitioners claim that their marks were above the last cut-off marks. In the instant petition2, the petitioner no. 1 claims that he had obtained 66.08 marks under the unreserved category while the cut-off marks of unreserved category in Mathematics was 65.88 marks. The petitioner no. 2 had also applied for the appointment of Assistant Teacher in Mathematics. He claimed that his cut-off marks is 66.23 under the unreserved category thus both the petitioners were eligible for counselling in District Kushinagar and Allahabad. It is stated that the petitioners were invited in fifth round of counselling and they claimed that their testimonials were verified on 21.10.2014. A copy of the receipt is on the record.
On 30.12.2016 the Secretary of the Board issued a communication addressed to all the District Basic Education Officers of the State, wherein it was mentioned that in several representations it has been pointed out that in some of the districts a large number of posts are lying vacant. The District Basic Education Officers were directed to complete the recruitment process in respect of the vacant posts. It was also directed that the candidates who have secured 82 marks in Teachers Eligibility Test Examination in seventh round counselling and they were issued appointment letters but if for some reasons they were not able to join their posts, they may be given an opportunity to join on or before 10.1.2017. After giving them opportunity, if posts remain vacant, in that event the candidates who had participated in the counselling but whose marks were below the cut-off marks, they may also be offered appointment against the remaining vacant posts.
In compliance of the circular dated 30.12.2016 the District Basic Education Officers initiated proceedings to fill up the posts but that was deferred due to notification of the Election Commission as the Modal Code of Conduct was enforced in the State due to the ensuing elections of Legislative Assembly which were scheduled to be held in March, 2017.
After the Legislative Assembly Elections were over, vide communication dated 17.3.2017 the Secretary again issued a circular addressed to all District Basic Education Officers to comply with the earlier directions dated 30.12.2016 since the elections were over. However, after issuance of the circular dated 17.3.2017 within ten days another circular was issued by the Secretary on 23.3.2017 whereby he has issued directions to the District Basic Education Officers to stop the recruitment process till further orders. The petitioners being dissatisfied with the circular of the Secretary dated 23.3.2017 have instituted the petitions in this batch.
Similarly, vide Government Order dated 15.12.2016 the State Government has taken a decision for the recruitment on 4000 posts of Assistant Teachers (Urdu Language) out of 16460 posts of Assistant Teachers in Basic Schools run by the Board. The said Government Order was followed by a circular dated 28.12.2016 issued by the Secretary of the Board. In the said circular a specific schedule was mentioned for completing the aforesaid process of selection. On 26.12.2016 the guidelines were also issued by the Secretary of the Board giving detailed directions to be followed in finalizing the said selection. A copy of the said circular is on the record. A perusal of the guidelines dated 16.12.2016 indicates that the entire selection is based upon quality point marks awarded on the academic qualification possessed by the individual candidate.
The petitioners in the companion writ petitions claimed that they were fully qualified in terms of the said Government Order and the guidelines, hence they made on-line applications for consideration of their appointment as Assistant Teachers (Urdu). They also claim that they possess Moallim-e-Urdu from Jamia Islamia, Aligarh prior to 11.8.1997 and they have also passed UP TET (Urdu) subject (Primary Level). They are also aggrieved by the circular dated 23.3.2017 issued by the Secretary, Basic Education for staying the entire recruitment process.
In Writ-A Nos. 37154 of 2017 and 38729 of 2017 the grievance of the petitioners is that the State Government vide Government Order dated 16.6.2016 directed to initiate the recruitment process for appointment against 16448 posts. It is stated that in compliance thereof a circular was issued by the Secretary, Basic Shiksha Parishad initiating recruitment process and the petitioners have made an applications pursuant to the advertisement issued on the basis of said Government Order. The petitioners are aggrieved by the order dated 23.3.2017 whereby recruitment process has been kept in abeyance.
In Writ-A No. 29206 of 2017 the petitioner sought permission from the BSA to fill up the posts of Assistant Teachers in a Junior High Schools run by the Committee of Management. The BSA vide order dated 8.6.2017 has declined to give permission on the ground that the Secretary vide impugned order dated 23.3.2017 has stayed the recruitment process.
In one of the writ petitions being Writ-A No. 40150 of 2017 the State Government had initiated the recruitment process for the appointment of Anshkalik Instructors on contract basis. A detailed direction / guideline has been laid down for their engagement, however, by the same impugned order dated 23.3.2017 the process of recruitment has been stayed by the State Government.
Later, on 23.5.2017 the Secretary in another circular issued a direction that his earlier order dated 23.3.2017 shall not be applicable in respect of the appointment of Trainee Teachers in compliance of the order of the Supreme Court. Regard being had to the fact that the selection of trainee teachers was held in pursuance of the Government Order dated 11.7.2013 against about 72000 vacancies.
On 12.6.2017 the Director, State Counsel of Education Research and Training3 in a communication addressed to the Principals of some of the District Institutes of Education & Training issued similar directions in respect of trainee teachers which was initiated in pursuance of Government Order dated 11.7.2013.
In the meantime some of the candidates, who had applied for the appointment on the posts of Assistant Teachers (Mathematics and Science) in pursuance of the Government Orders dated 11.7.2013 and 23.8.2013, preferred writ petitions in this Court for a direction upon the respondents for their appointment against the vacant posts. In Writ-A Nos. 56047 of 2016 (Manoj Kumar Singh and others v. State of U.P. and others) and 54782 of 2016 (Alok Kumar and others v. State of U.P. and others) directions were issued to the Director of Education (Basic) to consider their grievance.
In compliance of the order passed by this Court in Writ-A No. 54782 of 2016, the Director passed an order on 13.1.2017, wherein he has taken note of the circular issued by the Secretary, Basic Education dated 30.12.2016 for completing the recruitment against the vacant posts, hence the representation was disposed of by the Director in terms of the circular dated 30.12.2016 issued by the Secretary.
The impugned order dated 23.3.2017 has been assailed in this batch of writ petitions whereby the recruitment process against the vacant posts has been stopped. In the said order no reason has been mentioned hence this Court directed the Secretary, Basic Education to file an affidavit disclosing the reason for stopping the recruitment process.
In compliance of the order of this Court an affidavit is filed, wherein the stand taken amongst other is that on the oral order received from the State Government, the process of appointment/ posting of teachers has been withheld for the time being by the Board across the State. The other reasons mentioned in the affidavit are that after the enforcement of the Right of Children to Free and Compulsory Education Act, 20094 (Act no. 35 of 2009), the State Government exercising its power under Section 38 of the said Act has framed U.P. Right to Education Rules, 2011.
It is stated that after the enforcement of the provisions of the Act, 2009 a school-wise determination of teachers and the students ratio has been done in the academic session 2017-18 and on the basis of the said determination of school-wise strength of teachers as far as it came to in light that strength of students in every institution is not as per proportion contained in the Schedule of the Act, 2009 as in some of the Institutions the number of teachers have been found to be in excess whereas in other institutions there are shortage of teachers hence a Government Order has been issued on 13.6.2017 for adjustment/ transfer of the teachers in terms of the Schedule of the Act, 2009.
It has also been stated that the Board has issued instructions as per oral directions received from the State Government and there is no ulterior motive or intention for issuing the said directions.
In spite of the time granted to the learned Standing to obtain instructions from the State, he has not received any instruction. A statement was made by the learned Standing Counsel that the Principal Secretary, Basic Education and other authorities have also been informed but no instruction has been received from them except from the Secretary, U.P. Board of Basic Education.
A rejoinder affidavit has been filed to the Short Counter Affidavit of the Secretary of the Board.
I have heard Sri Seemant Singh, Ashwani Kumar Yadav, Sri Mithilesh Kumar Maurya, learned counsel for the petitioners, learned Standing Counsel and Sri A.K. Yadav & Sri Bhanu Pratap Singh, learned counsel for the Board.
Learned counsel for the petitioners submits that the petitioners have applied in pursuance of the Government Order dated 11.7.2013. They were called for counselling and they have secured more marks than the cut-off marks in their respective districts where they had applied. The second respondent on 30.12.2016 had issued a direction to all the District Basic Education Officers to complete the recruitment process against the vacant posts. Initially due to the Model Code of Conduct enforced by the Election Commission the selection was stopped but on 23.5.2017 the second respondent issued directions for completing the process of recruitment as the ban was lifted.
He further submitted that the impugned order dated 23.3.2017 has been passed only on the ground that after the Legislative Assembly Elections, there is change of Government and on the oral instructions of the State Government, the entire process of recruitment has been abruptly stopped. It is stated that the said decision is arbitrary and illegal. He has further submitted that the Director, SCERT in the order dated 13.1.2017, which he has passed in compliance of the order of this Court, has mentioned that the Secretary has already issued directions to the District Basic Education Officers for completing the process of selection hence no further order is required to be passed.
Lastly, it was strenuously urged that by a similar oral direction the State Government had directed the U.P. Secondary Education Services Selection Board not to declare the result of selection/ interview of pending examination. The said decision was challenged in Writ-C No. 20421 of 2017. In the said writ petition the Principal Secretary, Secondary Education was directed to file his personal affidavit. In compliance thereof the Principal Secretary, Secondary Education has filed his affidavit wherein it was stated that he did not issue any direction to the Commission to stop the declaration of the result of the selection / interview or pending examinations. It is contended that thereafter the Commission has declared the result of the selection.
It was further submitted that the State Government has already determined number of posts to be filled up amongst the eligible candidates for 14667 Mathematics teachers and equal number of Science teachers in Senior Basic Schools, hence only on the ground that the Government has changed, the position of the vacancies will not be changed. Learned counsel for the petitioners has placed reliance on a judgment of the Supreme Court in the case of Jitendra Kumar and Anr. v. State of Haryana and others, Appeal (Civil) No. 5803 of 2007, dated 11.12.2017.
Learned counsel for the respondents have referred the averments made in paragraph nos. 4, 5, 6 and 7 of the short counter affidavit.
I have considered the submissions of learned counsel for the parties and perused the record.
As regards the averment mentioned in the short counter affidavit that in terms of the Act of 2009 the exercise is going on for the transfer and adjustment of the teachers in terms of Schedule of the Act, 2009, appears to be beside the point. The rules were made by the State Government and the Central Government in the year 2010-11. More than five years have passed. The said exercise is only in respect of adjustment and transfer of the teachers. The State Government after the enforcement of its Rules in 2010 has undertaken the determination of the vacancies in Basic Schools and has found that 29334 teachers of Mathematics and Science are required to be appointed. The said policy decision of the State Government must have based on the material before it.
The State Government has not issued any subsequent Government Order reducing the number of posts or has taken any decision exercising its power under the U.P. Basic Education Act, 1972 issuing directions to the Board to stop selection on the ground mentioned in the Short Counter Affidavit.
In addition to above, the impugned order dated 23.3.2017 does not disclose any reason. It is a trite that the reason cannot be supplied by the affidavits. Reference may be made to the judgment of the Supreme Court dated Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405, thus the aforesaid ground mentioned in the affidavit of the second respondent is also not sustainable for the reasons mentioned above.
Learned counsel for the respondents submits the impugned order has been passed on the oral instructions of the State Government and has also tried to justify the impugned order on the ground that vide Government Order dated 13.6.2017 the process for adjustment and transfer is underway.
Learned counsel for the petitioners in his rejoinder affidavit submitted that the Government Order dated 13.6.2017 has no bearing in the process of selection as it deals with only adjustment and transfer of the excess teachers. The advertisement for 29334 vacancies have been made after verifying the vacancies which were in existence, hence the said Government Order has nothing to do with the recruitment process. In case it is found that in any Institution the number of teachers is in excess, they can be transferred/ absorbed in other Institution where there is a shortage of teachers.
I have considered the submissions of learned counsel for the parties and perused the record.
The parties are not in conflict on the fact that a large number of posts of Assistant Teachers are lying vacant in the Basic Schools (Senior Basic Schools/ Upper Primary Schools) run by the Board. Most of these schools are in rural area where students from marginalized section of the society are getting their elementary education.
The Government Order dated 11.7.2013 was issued after undertaking an exercise of determination of vacancies in Senior Basic Schools. Mathematics and Science are important subjects which are imparted in Senior Basic Schools. Vacancies in the said subjects adversely affects the studies of the students of Science stream. The process of selection was started in the year 2013 and after Seventh round of counselling it was found that still a large number of posts are lying vacant. Keeping in view of the said facts the second respondent had issued a circular dated 30.12.2016 to all the District Basic Education Officers to complete the recruitment process by allowing the selected candidates to join their posts by 10.1.2017 and thereafter to issue appointment letters to remaining candidates who had participated in the counselling against the vacant posts. The said exercise could not be completed due to enforcement of the Model Code of Conduct during Legislative Assembly Elections which were conducted in March, 2017.
After the elections were over, a fresh direction was issued by the second respondent on 17.3.2017 to comply with the circular dated 30.12.2016 but after few days a cryptic order was passed by him that all further proceedings of the recruitment be stayed. In the said order which is on the record as Annexure No. 6 to the writ petition, there is no mention that it has been issued by the second respondent in compliance of the directions of the State Government. In his affidavit the second respondent has mentioned that on the oral instructions of the State Government the said order has been passed. Relevant part of the Short Counter Affidavit is extracted herein-below:
"6...
(ii) Accordingly, on the oral orders received from the State Government, the process of appointment/ posting of new teachers has been withheld for the time being by the Board across the State.
7. ...such steps have been bonafidely taken by the Board for the time being as per oral instructions received from the State Government and not with any ulterior motive or intention. However, if this Hon'ble Court comes to the conclusion that any act or omission of the deponent as Secretary, Board of Basic Education, U.P., Allahabad is coming in the way of justice, he is tendering his unconditional and unqualified apology for the same before this Hon'ble Court and the same is deeply regretted..."
The stand taken by the second respondent that on the oral instructions the recruitment process has been stopped, does not stand to the reasons. The recruitment of teachers in Basic Schools are governed under the statutory provisions. The Rules, 1981 provides the detail procedure for the recruitment and other service conditions.
The Basic Schools are governed under the provisions of the Act, 1972. Section-4 of the said Act enumerates the functions of the Board. Section-4 reads as under:
"4. Function of the Board.---(1) Subject to the provisions of this Act, it shall be the function of the Board to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State, to raise its standards and to correlate it with the system of education as a whole in the State.
(2) Without prejudice to the generality of the provisions of sub-section (1), the Board shall, in particular, have power-
(a) to prescribe the courses of instruction and books for basic education and teachers' training therefor;
(b) to conduct the junior high school and basic training certificate examinations and such other examinations as the State Government may from time to time by general or special order assign to it and to grant diplomas or certificates to candidates successful at such examinations;
[(c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by [the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities" in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board];
(d) to exercise supervision and control over basic schools, [District Institute of Education and Training], basic training certificate units and the State Institute of Education;
(e) to accord approval (with or without modification) to the schemes prepared by the [Gaon Shiksha Samitis, Zila Panchayats or Municipalities] for the development, expansion and improvement of and research in basic education in any district or in the State or in any part thereof];
(f) to acquire, hold and dispose of any property, whether movable, or immovable and [* * *];
(g) to receive grants, subventions and loans from the State Government;
[(g-1) subject to the general control of the State Government to issue directions not inconsistent with this Act, to Gaon Shiksha Samitis, Gram Panchayats, Zila Panchayats or Municipalities in the performance of their functions under this Act];
(g-2) [* * *];
(h) to take all such steps as may be necessary or convenient for, or may be incidental to, the exercise of any power, or the discharge of any function or duty conferred or imposed on it by this Act:
[Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act.]"
By the U.P. Ordinance No. 4 of 2000 dated 11.2.2000 now Sections 9A, 10, 10A and 11 have been inserted in Uttar Pradesh Basic Education Act, 1921 regarding functions of Zila Panchayat, Municipalities, Gram Panchayats regarding the place, properties and assets of the Basic Schools in their area.
Section 12 of the Act, 1972 enjoins that the Director shall have the control over the Basic Schools and he may direct the Management of Basic Schools to remove defect or deficiency found on inspection or otherwise and on his recommendation the Board can withdraw the recognition of the schools which is found to be deficient in fulfilling the norms laid down under the Rules, Guidelines of the Board.
Section 13 of the Act, 1972 provides that the Board shall carry out directions issued to it from time to time by the State Government for the efficient administration of this Act and if a dispute arose between the Board and the State Government or between the Board or local body, the decision of the State Government on such dispute shall be final and binding on the Board. The Board is under obligation to furnish such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act.
Section 17 gives a power to the State Government that if any difficulty arises in giving effect to the provisions of the Act, it may by a notification in the gazette make provision to carry out the object of the Act. The sub-section (2) of Section 17 of the Act provides that no order under sub-section (1) shall be made after expiration of the period of two years from the date of commencement of Uttar Pradesh Basic Education (Amendment) Ordinance, 2000. Section-17 reads thus:
"17. Power to remove difficulties. - (1) If any difficulty arises in giving effect to the provisions of this Act or by reason of anything contained in this Act the State Government may, as occasion requires, by notification in the Gazette, make such incidental or consequential provisions, including provisions for adapting or modifying any provisions of this Act or of any enactment by or under which any local body is constituted but affecting the substance as it may think necessary or expedient for the purposes of this Act.
(2) No order under sub-section (1) shall be made ["after the expiration of the period of two years from the date of commencement of the Uttar Pradesh Basic Education (Amendment) Ordinance, 2000]"
(3) Every order made under sub-section (1) shall be laid, as soon as may be before both the Houses of the State Legislature."
From a perusal of the scheme of the Act it is evident that the Board has been entrusted the functions to control the Basic Schools in the State as it has power to prescribe the courses for instructions for teachers' training to conduct the basic training examinations and other examinations, grant of diploma or certificate to the candidates as laid down by general or special orders in respect of the administration of the Institution and it has a general power of the supervision and control over the Basic Schools including District Institutes of Education and Training.
No doubt, the State can issue directions under Section 13 of the Act to the Board for the efficient administration of the Act. In the instant case the State has not come forward with a case that it has issued any oral direction to the Board in exercise of its power under Section 13 of the Act. In the short counter affidavit sworn by the Secretary of the Board it is mentioned that he has issued the impugned order on the oral instructions of the State. In the affidavit, he has not specified the authority who has issued oral directions. A statutory power conferred upon the State Government cannot be exercised in such a manner under the Scheme of the Act, 1972. The State has no authority to issue any oral order. It needs no elaboration that the executive order can be issued in terms of Article 162 of the Constitution after following the procedure provided under the law. Admittedly, no such order has been issued by the State.
The selection process was initiated pursuant to the decision of the State Government vide Government Order dated 11.7.2013 and 23.8.2013, hence, if the State Government, later on, took a decision to stop the process of selection, it could have issued an appropriate order to discontinue the selection. No such order has been passed by the State Government.
It appears that similar oral directions were issued to the U.P. Secondary Education Services Selection Board. In Writ-C No. 20421 of 2017 the Principal Secretary was directed to file his personal affidavit who has denied to issue any such directions. Consequently, the U.P. Secondary Education Services Selection Board has declared the result of the Assistant Teachers L.T. Grade and others.
During the course of submissions Sri Bhanu Pratap Singh, learned Advocate appearing for the Board has passed on an order issued by the State Government dated 11.8.2017. The said order, at his request, has been taken on the record. A perusal of the said order indicates that the Accountant General of India in one of his report has taken note of the fact that in the State of U.P. a number of students enrolled in the year 2012-13 were 3.71 crore which has reduced to 3.64 crore, thus between the years 2010-16 in the Basic Schools the enrollment of the students has declined by 18.6%. This is an alarming situation that in spite of the growth of population, number of students of Junior and Senior Basic Schools are falling down. It is against the spirit of Article 21-A of the Constitution of India and the consequential enactments i.e. the Right of Children to Free and Compulsory Education Act, 2009. It also frustrates the object of Sarva Shiksha Abhiyan, which lays emphasis on the maximum enrollment of children in the Basic Schools. In the said instructions it has been pointed out that the Central Government is not providing sufficient fund to the State Government. Paragraph-7 of the said instructions reads as under:
**7& orZeku esa ifj"knh; izkFkfed fo|ky;ksa esa 399272 f'k{kd@f'k{kkfe= rFkk ifj"knh; mPp izkFkfed fo|ky; esa 164003 f'k{kd@ vuqns'kd bl izdkj ifj"knh; fo|ky;ksa esa dqy 5]63]275 f'k{kd@f'k{kkfe=@vuqns'kd dk;Zjr gSa A buds osru ,oa ekuns; ij vkus okyk foRrh; O;; Hkkj Hkkjr ljdkj ,oa jkT; ljdkj }kjk ogu fd;k tk jgk gS A Hkkjr ljdkj }kjk foRrh; o"kZ 2012&13 ls izkFkfed @ mPp izkFkfed fo|ky; LFkkfir djus gsrq ;k izkFkfed fo|ky;ksa esa voLFkkiuk lqfo/kkvksa ds fodkl gsrq dksbZ Hkh /kujkf'k miyC/k ugha djk;h tk jgh gS A blh ds lkFk o"kZ 2015&16 esa :0 2485-09 djksM+ ,oa foRrh; o"kZ 2016&17 esa 3618-46 djksM+ :i;s Hkkjr ljdkj }kjk jkT; ljdkj dks miyC/k ugha djk;k x;k gS] ftlds dkj.k jkT; ljdkj dks vius Jksrksa ls v/;kidksa ds osru ij opuc) O;; ,oa vU; dk;Zdzeksa ij vko';d O;; djus gsrq vius Jksrksa ls 6103-55 djksM+ :i;s dh vfrfjDr /kujkf'k O;; djuh iM+h gS A**
The declining of number of enrollment of students clearly indicates that the State is not paying due attention to the Basic Education in the light of the constitutional mandate under Article 21-A of the Constitution of India which provides that the children between the age of 6 to 14 years have a fundamental right to receive the education.
As regards the lack of fund is concerned the said ground is not acceptable in view of the Eighty Sixth Amendment in the Constitution by inserting Article 21-A. The issue with regard to the lack of funds has been considered by the Supreme Court in the case of State of H.P. v. H.P. State Recognized & Aided Schools Managing Committees and others, (1995) 4 SCC 507. In the said case also the State of Himanchal Pradesh has expressed its inability to provide grant-in-aid to the private institutions where the children of the age of 6 to 14 years were studying. The Supreme Court held as under:
"17. It is high time that the State must accept its responsibility to extend free education to the children upto the age of fourteen. Right to education is equally guaranteed to the children who are above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same. The State must endeavour to review and increase the budget allocation under the head 'Education'. The Union of India must also consider to increase the percentage of allocation of funds for "Education" out of the Gross National Product."
Regard being had to the fact that the decision of the Supreme Court was prior to the amendment in the Constitution inserting Article 21-A and the enactment of the Act, 2009. Now after the said amendment it is not open to the State Government to take plea of lack of funds in respect of appointments or providing infrastructure to the Basic Schools conducted by the Board. The Constitution casts an obligation on the State Government to provide quality education in the Basic Schools.
For the reasons mentioned above, I find that the oral instructions issued by the State Government for stopping the recruitment process is not justifiable. Accordingly, the order of the Secretary dated 23.3.2017, which is bereft of any reason, is set aside. The Secretary of the Board is directed to complete the process of selection against the remaining vacant posts strictly in terms of earlier respective circulars dated 16.6.2016, 19.9.2016 15.12.2016 and 30.12.2016, expeditiously, preferably within two months from the date of communication of this order.
The writ petitions are, accordingly, allowed.
No order as to costs.
Order Date :-3.11.2017
DS/-
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