UPTET 839 प्रशिक्षु शिक्षकों काे नियुक्ति के लिए इलाहाबाद हाईकोर्ट का आर्डर कॉपी: देखें कोर्ट के आदेश की प्रति

February 17, 2017

उस अार्डर का सार यही है कि सीधे बीएस को आदेशित किया गया है। अंतिम पन्ने का अंतिम कुछ लाइनो को पढ़े आप को आर्डर खुद समझ मे आ जायेगा। वैसे अार्डर काफी लंबा है 8 पन्ने का आर्डर है पढ़ें यह आर्डर की कॉपी

Court No. - 17
Case :- WRIT - A No. - 2741 of 2017

Petitioner :- Arvind Kumar Singh And 14 Others

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Vijay Kumar Singh,Hritudhwaj Pratap Sahi

Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,B N

Singh,Durgesh Kumar Dubey,Manoj Kumar Srivastava,Rahul Agarwal,S

Chopra

Hon'ble Manoj Kumar Gupta,J.

Heard Shri Ashok Khare, learned senior counsel assisted by Shri

V.K. Singh for the petitioners, learned standing counsel for the State-
respondents and Shri B.N. Singh for the Election Commission of India.

The petitioners herein applied for recruitment on the post of

trainee teachers in pursuance of an advertisement dated 30.11.2011. The

procedure adopted by the Board in making the selection was subject

matter of challenge before this Court in large number of writ petitions

on the ground that the marks obtained by the candidates in Teacher

Eligibility Test should be the determining factor in making the selection.

The service rules in so far as the said criteria was changed by the

fifteenth amendment dated 31.8.2012 was specifically challenged.

However, the petitioners therein could not succeed before the learned

Single Judge and consequently, the matter was carried in special appeal.

The special appeals were decided by a common judgment, the leading

one being in case of Shiv Kumar Pathak and others Vs. State of U.P.

and others1

, wherein this Court declared Rule 14(3) of the 1981 Rules2

amended by the 15th amendment to be ultra vires. The Court held that in

1 2013 (10) ADJ 21 (DB)

2 U.P. Basic Education (Teachers) Service Rules, 1981

2

view of the notifications issued by N.C.T.E., which have overriding

effect, the criteria for selection should be the marks obtained by the

candidates in T.E.T. Examination as notified by the advertisement issued

on 30.11.2011. The operative part of the judgment in Shiv Kumar

Pathak (supra) is to the following effect:-

“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.

The parties shall bear their own costs.”

Aggrieved thereby, the State went in appeal before the Supreme

Court. The appeals filed by the State Government are still pending

before the Supreme Court. The Supreme Court by order dated 7.12.2015

directed as under:-

At this juncture, we may state that Mr. Bhatia, learned AAG

submitted that in pursuance of the direction of this Court on

the earlier occasion and prior to that more than 75,000

representatives were received and after scanning the same,

the State Government has found 12,091 persons eligible for

being appointed subject to verification of antecedents. Let

the said persons be appointed subject to the said

verification within six weeks hence. (emphasis supplied)

3

In order to ensure compliance of the order of the Supreme Court,

the State Government issued an order dated 9.2.2016 directing issuance

of appointment letter to the candidates found suitable. In pursuance

thereof, the petitioners herein were issued appointment orders. One such

order issued in respect of the first petitioner dated 9.2.2016 has been

brought on record as Annexure 4 to the writ petition. The appointment

order states that the appointment is on adhoc basis and would be subject

to the decision in the Appeals pending before the Supreme Court. The

petitioner will have to undergo training of six months in the institution

assigned to him and after successful completion of training, he will be

given substantive appointment. The petitioners claim that in pursuance

of the appointment orders issued in their favour, they had successfully

completed the training of six months. Now having completed the

training, they are entitled to substantive appointments in terms of the

provisional appointment order. The grievance raised in the writ petition

is that the District Basic Education Officer is not issuing the formal

appointment/placement order on the ground that model code of conduct

issued by the Election Commission has come into force, which forbids

fresh appointments. The petitioners have, therefore, preferred the instant

writ petition for issuing a mandamus commanding the District Basic

Education officer, Allahabad to issue formal appointment-cum-posting

order in their favour.

Since, the dispute pertained to the interpretation of the model code

4

of conduct and therefore, this Court by order dated 19.1.2017 directed

the petitioners to implead the Election Commission of India as a party

respondent to the writ petition.

The Election Commission of India has filed a short counter

affidavit stating that the model code of conduct had come into force on

4.1.2017. Alongwith the counter affidavit, the letter issued by the

Election Commission of India on 4.1.2017 to the concerned States,

where elections are being held, prescribing the model code of conduct,

has been brought on record. In paragraph 3 (vi) of the said letter it has

been prescribed thus:-

“(vi) From the time elections are announced by the

Commission, Ministers and other authorities shall not-

(a) announce any financial grants in any form or

promises thereof; or

(b) (except civil servants) lay foundation stones

etc. of projects or schemes of any kind; or

(c) make any promise of construction of roads,

provision of drinking water facilities etc; or

(d) make any ad-hoc appointments in Government,

Public Undertakings etc. which may have the

effect of influencing the voters in favour of the

party in power.”

Shri Ashok Khare, learned senior counsel appearing on behalf of

the petitioners submitted that the embargo placed by the Election

Commission is on making adhoc appointments by the State Government

as may influence the voters. It is submitted that the petitioners had

already been granted appointment orders much before the election

process commenced. It is submitted that the State Government is bound

5

to comply with the directions issued by the Supreme Court and

consequently, the prohibition contained in the model code of conduct

will not apply to the case of the petitioners. It is sought to be submitted

that the appointments were made in pursuance of the direction of the

Supreme Court and thus the State Government, which is in power, is not

going to derive any benefit out of it.

Shri B. N. Singh, learned counsel appearing on the behalf of

Election Commission of India submitted that the guidelines issued by the

Election Commission have been placed before this Court and it is for

this Court to interpret the same as to whether it would apply to the facts

of the instant case or not.

Shri Prabhakar Awasthi has filed an application seeking

impleadment on behalf of certain unsuccessful candidates. He submitted

that the applicants could not be granted appointment, as certain

appointment letters have been issued without verification of the

antecedents, as directed by the Apex Court. He has placed on record the

order of the Supreme Court dated 17.12.2014 in the case of Shiv Kumar

Pathak (supra), whereby the Supreme Court modified the order passed

by it on 25 March 2014. The order dated 25.3.2014 was to the following

effect:-

“Leave granted.

Hearing expedited.

By this interim order, we direct the State of Uttar Pradesh to

fill up the vacancies of Assistant Teachers in the schools

pursuant to the advertisement issued on 30.11.2011 as per

6

the directions issued by the Division Bench of Allahabad

High Court in the case of Shiv Kumar Pathak and others

(Special Appeal (Defective) No. 237 of 2013) and connected

matter as expeditiously as possible at any rate within 12

weeks' time from today.

Further, the State in the letter of appointment that will be

issued to the successful candidates shall mention that their

appointment is subject to the result of the civil appeals that

are pending before this Court.

The appointee(s) shall not claim any equities at the time of

final disposal of the civil appeals. All actions/proceedings

of the State Government will be subject to the final result of

these civil appeals.”

The modification made by the Supreme Court by the subsequent

order dated 17.12.2014 provided as under:-

“Despite the aforesaid order, the State has not carried out

the appointment process. After hearing the learned counsel

for the parties at length on various occasions, we are

inclined to modify the order passed on 25th March, 2014

and direct that the State Government shall appoint the

candidates, whose name have not been weeded out in the

malpractice and who have obtained/secured seventy percent

marks in the Teacher Eligibility Test (TET). The candidates

belonging to Scheduled Caste/Scheduled Tribe/Other

Backward Classes and the physically handicapped persons,

shall be appointed if they have obtained/secured sixty-five

percent marks. If there is any policy of the State

Government covering any other category for the purpose of

reservation, it may be given effect to with the same

percentage. It shall be mentioned in the appointment letter

that their appointment shall be subject to the result of these

appeals and they shall not claim any equity because of the

appointment, for it is issued on the basis of the direction

passed by this Court. The letters of appointment shall be

issued within a period of six weeks.”

He submitted that the State respondents without holding a proper

scrutiny of the testimonials of the selected candidates had granted

appointment to them, as a result whereof, the applicants had not been

selected.

7

It is not disputed before this Court by any of the parties that the

Supreme Court has directed the State Government to issue appointment

orders. The appointments made would be subject to the final result of the

litigation pending before the Supreme Court. After passing of the order

dated 17.12.2014, the Supreme Court has concededly passed another

order dated 7.12.2015, in which it is specifically recorded that the State

Government, after scanning the documents as well as the representations

filed before it has found 12091 persons eligible for being appointed,

subject to verification of their antecedents. There was a specific direction

by the Supreme Court to grant appointment to such persons subject to

verification within six weeks thence. It is not disputed before this Court

that in pursuance of the direction of the Supreme Court, a large number

of candidates had been granted appointment including the petitioners

herein. The petitioners in pursuance of the appointment, which has been

granted to them, have already undergone the training. The appointment

orders were issued in favour of the petitioners much before the

enforcement of the model code of conduct. The prohibition contained in

the guidelines issued by the Election Commission of India would thus

not be applicable to the petitioner, who had already been issued

appointment orders and in pursuance whereof they have already

undergone the training. Apart from it, this Court finds that the

appointment of the petitioners is not on account of any executive fiat but

in pursuance of the directions issued by the Supreme Court. The State

Government is not going to gain any popularity out of it and thus, there

8

is no likelihood of influencing the voters. Such being the position in the

instant case, this Court is of the considered opinion that the prohibition

placed by the Election Commission of India would not preclude issuance

of formal appointment/placement orders in favour of the petitioners.

As regards the plea of the applicants seeking impleadment that

certain persons had been granted appointment without verification of

their testimonials, needless to say that for redressal of such grievance, it

is always open to the applicants to take recourse of law, as is permitted.

The said controversy cannot be decided in the instant petition, as it is

beyond the scope of the instant petition.

Accordingly, the writ petition stands allowed and a direction is

issued to the District Basic Education Officer of the concerned Districts

to issue formal appointment orders/placement orders in favour of the

petitioners within a period of three weeks from the date of production of

a certified copy of this order, strictly in accordance with directions

contained in the order of the Supreme Court dated 17.12.2014 and

g7.12.2015 in Shiv Kumar Pathak (supra).

(Manoj Kumar Gupta, J.)

Order Date :- 16.2.2017

AK Pandey