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
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
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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.
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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
ख़बरें अब तक - 72825 प्रशिक्षु शिक्षकों की भर्ती - Today's Headlines