Yamuna Prasad Yadav vs The State Of U.P. Thru. The Secy. ...
2019 Latest Caselaw 5418 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									   A.F.R.
 
Court No. - 25
 
Case :- MISC. SINGLE No. - 3203 of 2012
 
Petitioner :- Yamuna Prasad Yadav
 
Respondent :- The State Of U.P. Thru. The Secy. Basic Shiksha & Ors.
 
Counsel for Petitioner :- Mohammad Naseerullah
 
Counsel for Respondent :- C.S.C.,A.M. Tripathi
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard learned counsel for the parties and perused the record.

2. The petitioner has filed this writ petition for issuing a mandamus to the Opposite party no.5 i.e. The District Basic Shiksha Adhikari, Pratapgarh, to appoint the petitioner as Assistant Teacher in compliance of the Government Order dated 29.12.2008 after issuing him a Certificate for completion of BTC Training Course.

3. It is the case of the petitioner as argued by Sri Mohammad Naseerullah, that he had initially appeared in BTC Entrance Examination, 1997, and the District Institute of Education at Atarsand of District Pratapgarh had orally permitted the petitioner to appear in the said examination. However, even after declaration of his result as successful candidate he was not given admission at Atarsand and therefore, he filed a Writ Petition No.489 (M/S) of 2000 (Yamuna Prasad Yadav Vs. The State of U.P. and Others) wherein an interim order was granted by this Court on 23.02.2000 directing the respondents to give admission to the petitioner in BTC Training Course. The aforesaid writ petition was allowed on 01.04.2003 and even though the writ petition was allowed the petitioner having completed two years BTC Training Course in pursuance of the interim order dated 23.02.2000 he was not issued BTC Training Certificate. The State of Uttar Pradesh filed a Special Appeal No.332 of 2003 against the order dated 01.04.2003 which Special Appeal was allowed by the Division Bench by observing that the petitioner had been wrongly communicated that he was selected in BTC Training Course. As undisputedly, his marks were only 147.88 whereas cut off marks of male candidates was 155.93 marks. It was observed by the Division Bench that mere allowing the respondents (the petitioner herein) to secure admission and the interim order passed by this Court would not give any vested right to the respondents to undertake the Training or to get his result declared. The Division Bench observed thus:-

".........."In view of the admitted fact that the respondent was a male candidate, he could not have been selected in the category of Women candidate. But his name was wrongly included in the aforesaid select list. He was allowed to pursue the Training Course under the interim orders of this Court, but the respondents being ineligible and having failed in the admission test could not be given advantage of the interim order in this manner. The order passed by the learned Single Judge is liable to be set aside which is hereby set aside....."

4. The order of the writ court having been set aside the Division Bench gave limited liberty to the petitioner to appear in next admission test to be held for BTC and be given age relaxation in case he had become over age in the meantime.

5. It has been submitted by the learned counsel for the petitioner that the petitioner learned from a news item that all those BTC Training Candidates of the year 2001 who had undertaken two years BTC Training Course which was cancelled for one reason or the other, had been allowed by means of Government Order dated 29.12.2008 to appear in the examination to be conducted for the purpose and in case they obtained 33% marks in such examination they would be appointed straightway as Assistant Teacher in School run by Basic Shiksha Parishad. The petitioner filed an application before the opposite parties submitting his request that he may be  allowed to appear in the Entrance test to be held for BTC Training Course 2001, in 2009. His representation was not being considered and therefore he filed the Writ Petition No.401 (M/S) of 2009 for a direction to the respondents to allow the petitioner to appear in the written test for BTC as per the Government Order dated 29.12.2008 and to be considered for appointment as Assistant Teacher thereafter. The writ petition was disposed of on 29.01.2009 by observing that in case there is no other legal impediment the petitioner shall be allowed to appear in the re-test and examination which was to be conducted by the opposite party no. 1 in the year 2009. The Court observed that after 2004 no Entrance examination has been held and therefore, the petitioner be allowed to appear in the Entrance examination proposed to be held on 01.02.2009.

6. The petitioner was allowed to appear in the examination but his result was not declared and the petitioner again filed a Writ Petition No.896 (M/S) of 2009. This writ petition was disposed of on 19.02.2009 with the observation that the petitioner had already been allowed to appear in the examination on 01.02.2009 and if the result of other candidates had been declared, the result of t he petitioner be declared forthwith, in case there is no other legal impediment.

7. When this order was not complied with and the result of the petitioner was not being declared the petitioner filed a Contempt Petition No. 863 of 2009. The Court issued notices and Secretary, Pariksha Niyamak Pradhikarn, U.P. appeared before the Court in person and this Court observed that although there was a mistake committed by the Department in publishing the name of the petitioner in the list of female candidates, the petitioner cannot denied grant of BTC Certificate as he had already completed two years training course. The Contempt Judge thereafter directed the opposite party to declare the result of the petitioner and if the petitioner was qualified within a week of the order dated 29.03.2012 passed by it. In compliance of the Hon'ble Contempt Court's order the result of the petitioner for BTC Training Course of the year 2001 was declared on 03.04.2012 and he was declared as passed therein.

8. It has been submitted by the learned counsel for the petitioner that even though the petitioner had been declared passed on 03.04.2012, he was still not given appointment as Assistant Teacher, therefore, he again approached this Court by filing this writ petition.

9. It is the case of the petitioner that after 1997 only one BTC Examination was held and that was 2009 in which the petitioner appeared in terms of the order passed by the Division Bench which while allowing the appeal on 21.02.2004 had permitted the petitioner to appear in the next admission test. In terms of the order passed by this Court in later writ petitions, the respondents declared the result of the petitioner on 03.04.2012. Now in the said examination the petitioner has been declared successful, therefore, authorities are bound by the observations made by the Division Bench as also the Government Order dated 29.12.2008 and they should be given a direction to issue appointment letter to the petitioner as Assistant Teacher.

10. Sri K.K. Shukla, who appears for the respondents has pointed out from the counter affidavit filed by the respondents and from the order dated 03.04.2012 that the petitioner was only allowed to undergo training and was issued certificate because of the orders passed by this Court and because of contempt petition being filed thereafter by the petitioner.

11. Learned counsel for the respondent has pointed out that it is not disputed by the petitioner anywhere that he had appeared in the BTC Entrance Examination 1997 and had secured only 147.88 marks. The cut off marks for OBC Male candidates was 155.93. The name of the petitioner had been wrongly shown in the list of female candidates as a result of which the Court at the interim stage in Writ Petition No.489 (M/S) of 2000 had issued a direction that the petitioner be allowed to undergo training. In pursuance of the interim order dated 23.02.2000 the petitioner was allowed to undergo training. Eventually, when the writ petition was taken up for final hearing the Court was informed that the petitioner had completed his training of two years in pursuance of the interim order.

12. This Court therefore, disposed of the petition and directed the respondents to declare him successful. This order passed by the writ court was challenged in Special Appeal No. 332 of 2003. In the Special Appeal the Division Bench has observed unequivocally that the petitioner was not entitled in the first place to undergo training as he had secured less marks than the cut off marks of OBC Male candidates. The order of writ Court having been set aside by the Division Bench meant that the petitioner had failed in the Entrance examination of 1997 and would not be entitled for any benefit of training undergone thereafter.

13. In the meanwhile, in the year 2001 a BTC Entrance examination was held where several discrepancies occurred. Several writ petitions were filed before this Court and this Court issued directions in such writ petitions for re-calculation of marks and declaration of fresh results. Ultimately, the matter went up before the Hon'ble Supreme Court and a direction was issued in Civil Appeal No. 5865 of 2007 on 13.12.2007 to the effect that the mistake of the Department could be rectified by it and on 29.12.2008 and G.O. was issued permitting all those successful candidates who had appeared in BTC Entrance examination 2001 and had undergone two years training course thereafter to appear in a fresh written examination and in case they were able to secure 33% marks in such examination, they would be issued appointment letters as Assistant Teacher in Schools runs by the Parishad. This Government Order dated 29.12.2008 was meant for only those candidates who had appeared in 2001 BTC Entrance examination, and had taken training thereafter. The petitioner admittedly had not appeared in 2001 examination, the petitioner had appeared in 1997 examination where he had failed. He had no case, therefore, for being allowed to appear in the examination to be held on 01.02.2009. However, the petitioner filed a Writ Petition No.401 (M/S) of 2009 which was disposed of by this Court by observing that the petitioner be allowed to appear in the admission test to be conducted on 01.02.2009 as per the directions given by the Division Bench of this Court in in Special Appeal No.332 of 2003. At the time when the such order dated 29.01.2009 was passed, this Court considered this fact only that when the Special Appeal was allowed on 21.02.2004, no BTC Entrance examination was held till 2009, therefore, the direction of giving age relaxation to the petitioner, in case he wishes to appear in the forthcoming entrance examination could only be satisfied if the petitioner was allowed to appear in 2009 examination.

14. The petitioner appeared in the examination but his result was not declared as the petitioner was not qualified but had been permitted to appear in the examination only because there was an order passed by this Court on 24.01.2009. The petitioner filed Writ Petition No.896 (M/S) of 2009 which was disposed of on 19.02.2009 with an observation that in case the result of the other candidates had been declared the result of the petitioner be also declared.

15. The petitioner alleged willful disobedience of the order and filed a Contempt Petition No.863 of 2009. The Hon'ble Contempt Judge only looked into the order dated 19.02.2009 and not into the past history of Litigation and observed that since the petitioner had been allowed to appear in the examination on the basis of an order passed by this Court and had qualified the same and had also successfully completed two years course, he be issued the certificate.

16. It has been submitted by Sri K.K. Shukla, that the petitioner has been issued a Certificate in compliance of the order passed by the Contempt Court on 03.04.2012 for BTC 2001 Entrance examination although he never appeared in 2001 Entrance Examination.

17. Sri K.K. Shukla, has pointed out the last two paragraphs of the order dated 03.04.2012 which are quoted as follows:

"(i) ;kph ch0Vh0lh0 izos'k cSp 1997 dk vH;FkhZ gSA =qfVo'k ;kph dk p;u iq:"k oxZ ds LFkku ij efgyk oxZ es gks x;k Fkk] fdUrq fiNM+h tkfr iq:"k oxZ ds vfUre p;fur vH;FkhZ ds yC/kkad ¼155.93½ ls ;kph dk yC/kkad ¼147.88½ de gksus ds dkj.k ;kph dks ch0Vh0lh0 ¼1997½ esa izos'k ugha fn;k x;kA foHkkx dk ;g d`R; ekuuh; loksZPp U;k;ky; ds vkns'k fnukad 13&12&2007 ds iw.kZr% vuqdwy Fkk ijUrq ;kph }kjk ekuuh; U;k;ky; esa fHkUu&fHkUu ;kfpdk,a ;ksftr dh x;h ftu ij ekuuh; U;k;ky; }kjk vkns'k ikfjr gksrs jgs ftudk vuqikyu Hkh [email protected] }kjk fd;k tkrk jgkA blh dze esa ;kph }kjk ekuuh; U;k;ky; esa ;kfpdk la0& 401 ¼,e0,l0½@2009 ;ksftr dh x;hA ftlesa ekuuh; U;k;ky; dks xqejkg djrs gq, vkns'k fnukad 29&01&2009 ikfjr djk;k x;k] ftlds leknj esa ;kph dks fnukad 01&02&2009 dks ch0Vh0lh0 2001 ds izos'k ijh{kk es lQy vH;fFkZ;ksa gsrq vk;ksftr ch0Vh0lh0 iqu% izos'k ijh{kk ¼2001½ esa vkSicfU/kd :i ls lEekfur djk;k x;kA fdUrq mDr ijh{kk esa lfEefyr gksus gsrq ;kph ds vgZ u gksus ds dkj.k ;kph dk ijh{kkQy ?kksf"kr ugha fd;k x;kA ;kph }kjk iqu% ekuuh; U;k;ky; esa ;kfpdk ;ksftr dh x;h ftlesa ikfjr vkns'k fnukad 19&02&2009 ftlesa Li"V gS fd ;fn oS|kfud vM+pu u gks rks ;kph dk ijh{kkQy ?kksf"kr dj fn;k tk;sA

fnukad 01&02&2009 dks lEiUu gqbZ ijh{kk dsoy mUgha vH;fFkZ;ksa ds fy, Fkh tks 'kklukns'k fnukad 29&12&2008 ls vkPNkfnr FksA vr% bl ijh{kk ls ;kph dk dksbZ lEcU/k u gksus ds dkj.k ijh{kkQy oS|kfud vM+pu gksus ds dkj.k vc rd ?kksf"kr ugha fd;k x;kA

;kph }kjk ;ksftr voekuuk la0&863¼lh½@2009 esa ekuuh; U;k;ky; }kjk ikfjr vkns'k fnukad 29&03&2012 ds leknj esa ;kph ds vgZ u gksus @ fof/kekU; u gksus ds ckotwn Hkh ¼fnukad 01&02&2009 dks lEiUu gqbZ ijh{kk dk ijh{kkQy½ ;kph dk ijh{kkQy vkt fnukad 03&04&2012 dks lQy ?kksf"kr djrs gq, izek.k i= fuxZr dj ,rn~ }kjk izdj.k fuLrkfjr fd;k tkrk gSA^^

18. In the Certificate issued alongwith this order dated 03.04.2012 the following language has been used ^^Jh ;equk izlkn ;kno iq= Jh jke vkljs ;kno fnukad 01&02&2009 dks lEikfnr ch0Vh0lh0 Vsªfuax dkslZ] 2001 dh ijh{kk ds lQy vH;fFkZ;ksa gsrq vk;ksftr iqu% ijh{kk es lekfgr ?kksf"kr gq,A

19. It is the case of the State-respondents that since the petitioner was not eligible in terms of the Government Order dated 29.12.2008 to appear in the re-examination which was held on 01.02.2009 even though he was allowed to appear in the said examination and was issued Certificate thereafter, he cannot be given appointment as a Assistant Teacher in Basic Shiksha Parishad School.

20. Sri Naseerullah in rejoinder affidavit has submitted that there is no doubt that the petitioner has completed two years training course. He has also submitted that there is no doubt also that the petitioner has qualified in the Entrance examination held on 01.02.2009. The petitioner has been issued the pass Certificate on 03.04.2012 by the respondents. They cannot escape now from the responsibility for issuing appointment letter to the petitioner as Assistant Teacher of Parisar school.

21. This Court has considered the rival submissions and it finds from perusal of the records that initially the petitioner had appeared in 1997 BTC Entrance examination in which admittedly he had been declared qualified but due to mistake of the Department His name was mentioned in the list of qualified Female candidates. On the basis of such mention of name the petitioner was allowed to undergo training for two years by means of an interim order dated 23.03.2000. When the Writ Petition was heard on 01.04.2003 finally the petitioner had completed two years training, therefore, the writ petition was allowed. In the Special Appeal the order of the writ court was set aside and setting aside of the order of the writ Court meant that the training undertaken by the petitioner in compliance of the interim order, would be of benefit to him.

22. The petitioner did not appear in the 2001 Entrance examination. The Government Order dated 29.12.2008 was issued only for the benefit of those candidates who had qualified in the 2001 Entrance examination. The petitioner had also not undertaken two years training in pursuance of the result declaration of the year 2001 Entrance examination. He was allowed to appear in the examination by this Court on the ground that after the Special Appeal was allowed in January, 2004 the BTC Entrance Examination was only held by the Department in 2009 and therefore age relaxation to which the petitioner was entitled in terms of the order passed by the Division Bench be given to the petitioner and he be allowed to appear in the said examination to be held on 01.02.2009. The petitioner appeared in the examination but his result was not declared as he was ineligible in the first place to appear in the said examination. The petitioner again filed a writ petition and the writ petition was disposed of and in terms of the order passed by the writ court a Contempt petition was filed and the petitioner was declared successful thereafter.

23. The petitioner undertook training of two years in pursuance of 1997 Entrance examination for which he was ineligible. The petitioner participated in 2009 Entrance examination after undertaking training. All the training that the petitioner had undertaken was in pursuance the 1997 Entrance examination, can be of no avail to the petitioner after order of the writ court was set aside by the Division Bench. The petitioner appeared in the examination held in February, 2009 only on the basis of orders passed by the writ court and his right was never adjudicated at any stage, as to whether the petitioner was indeed entitled in terms of the Government Order dated 29.12.2008 to appear in said examination. Such examination was limited to only those candidates who had appeared in the 2001 examination and had undertaken training thereafter.

24. It is settled position in law that the orders of the Court shall prejudice no one. In case of the petitioner, the orders that have been passed by this Court in various writ petitions filed by the petitioner and in Contempt petition filed thereafter had been passed on the basis of mis-representation of facts by the petitioner before the writ court.

25. Now the true facts have come on record, therefore, no direction can be issued to the respondents for issuance of appointment letter to the petitioner to act as Assistant Teacher in School runs by the Basic Shiksha Parishad.

26. This writ petition is, therefore, dismissed. No order as to costs.

 
Order Date :- 1.7.2019
 
PAL					       (Justice Sangeeta Chandra)