Usha Shukla vs State Of U.P. Thru. Addl.Chief ...
2021 Latest Caselaw 3638 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- SERVICE SINGLE No. - 12635 of 2020
 

 
Petitioner :- Usha Shukla
 
Respondent :- State Of U.P. Thru. Addl.Chief Secy. Secondary Edu.& Ors.
 
Counsel for Petitioner :- Meenakshi Singh Parihar,Prashant Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard R.K. Suryavanshi for the Board, Miss Meenakshi Singh Parihar for the petitioner and Shri Pradeep Kumar Singh for the State.

In spite of order dated 28.04.2020 nobody has put in appearance on behalf of opposite parties no. 5 and 6.

This petition has been filed on 17.09.2020 challenging a select panel dated 17.07.2020 containing the name of the selected candidate i.e. opposite party no. 6 at serial number 65 who has been selected by the Board for appointment on the post of Lecturer (Civics) in the institution where the petitioner claims to be working. He has also sought quashing of consequential orders dated 22.07.2020. He has also sought accommodation of the private opposite parties in some other institution. Other sought reliefs include consideration for petitioner's regularization on the post in question.

The learned Counsel for the petitioner fairly submits that as regards regularization, the petitioner is not covered by Section 33-G of the U.P. Secondary Education Service Selection Board Act, 1982, therefore, this Court is of the view that this part of the relief cannot be granted to the petitioner.

Prior to filing of this petition, the petitioner had filed a Writ Petition bearing no. 2978 (S/S) of 2008, Usha Shukla Vs. State of U.P. and others claiming salary of the post on which she claimed to have been validly appointed. The said petition was dismissed.

When a decision was rendered by the Single Judge Bench in the Case of Sanjay Singh Vs. State of U.P. and others, (2013) 1 UPLBEC 758, Special Appeal was filed against the said judgment. Special Appeal no. 430 of 2012 of the petitioner against the judgment of Single Judge in Writ Petition no. 2978 (S/S) of 2008 also came to be connected with it. All the appeals including the aforesaid Special Appeal no. 430 of 2012 of the petitioner came to be decided by this Court on 26.07.2017 in the following terms:-

"The questions involved in this bunch of special appeals/writ petitions and the questions that were raised, considered and answered by this Court vide judgment and order dated 17 December 2015 in Writ Petition No. 655 (S/S) of 2014 are similar. The concluding paragraph of the judgment reads thus:

"For these reasons, we have come to the conclusion that the view of the learned Single Judge in Sanjay Singh's case (supra) cannot be upheld as laying down the correct position in law. The view of the learned Single Judge shall stand, accordingly, overruled. The judgment in Pradeep Kumar (supra) is upheld subject to the principles which, we have enunciated in this judgment.

The second issue which has been referred for decision before the Division Bench is the scope of Section 16-E (11) when read in the context of Sections 16, 22, 32 and 33-E of the Act of 1982. We have already dealt with the interpretation of these provisions in the course of the judgment.

The reference to the Division Bench shall stand answered in the aforesaid terms. The record of these proceedings shall now be remitted back to the learned Single Judge, according to roster, for disposal in the light of the questions answered."

It is not in dispute that these special appeals/writ petitions are squarely covered by the said judgment, which is also under challenge before the Supreme Court in Civil Appeal No. 8300 of 2016 (arising out of Special Leave Petition No. 15272 of 2016). The Supreme Court, on 22 August 2016, while entertaining the SLP, granted leave and also stay of operation of the impugned judgment [dated 17 December 2015 in Writ Petition No. 655(S/S) of 2014] until further orders. In this view of the matter, yesterday, we made certain suggestions to learned counsel for the parties and asked them to consider the same and take instructions in the light thereof. Today, all counsel for the parties have agreed for disposal of this bunch of special appeals and writ petitions by the following order:

(1) The appeals/petitions also stand disposed of in terms of the judgment dated 17 December 2015 passed in Writ Petition No. 655 (S/S) of 2014, subject to outcome of Civil Appeal No. 8300 of 2016 pending before the Supreme Court and/or modification of interim order dated 22 August 2016, if any. In other words, if Civil Appeal No. 8300 of 2016 is allowed, counsel for the respondents submit that they shall give all benefits to the appellants/petitioners also in pursuance of the judgment of the Supreme Court, unless there is any other legal impediment and if any aspect is not covered by the judgment of the Division Bench dated 17 December 2015. Subject to above, parties have agreed for allowing the interim orders passed in special appeals/writ petitions protecting the interests of the appellants/petitioners, to remain operative till disposal of Civil Appeal No. 8300 of 2016 pending before the Supreme Court.

(2) In view of the above, it is needless to mention that the respondents shall allow the appellants/petitioners to continue to work on the posts, if they are working till today, and shall extend all benefits of interim orders, if any, till disposal of the appeal in the Supreme Court, unless there is any other legal impediment and if any aspect is not covered by the judgment of the Division Bench dated 17 December 2015.

(3) It is open to the respondents to take appropriate decision/action after disposal of the appeal in the Supreme Court subject to the order/judgment passed therein."

However, in the meantime the judgment of the Single Judge Bench in Sanjay Singh's case was referred for consideration by a larger Bench vide order of a Co-ordinate Bench dated 03.02.2014 passed in Writ Petition no. 655 (S/S) of 2014, Abhishek Tripathi Vs. State of U.P. and others. This was on account of the conflicting decisions noticed by the Co-ordinate Bench on the question of entitlement of the Committee of Management to make appointments of teachers in educational institutions being run by private bodies whether aided or otherwise, as also, on the question of entitlement of such appointees to salary of the post. The reference came to be decided by the Division Bench on 17.12.2015. The decision in the case of Sanjay Singh (Supra) was overruled. It was held that it did not lay down the law correctly. The other decision in Pradeep Kumar Vs. State of U.P. and others, Writ A no. 22520 of 2013 (decided on 01.08.2013) was upheld subject to the principles which had been enunciated by the Division Bench in its judgment dated 17.12.2015.

Being aggrieved some of the teachers approached the Hon'be Supreme Court by filing Special Leave petitions some of which were converted into Civil Appeals. The leading case was Civil Appeal no. 8300 of 2016 wherein an interim order was passed from 07.08.2020 based on which certain writ petitions were filed before this Court claiming same benefit. In some of these petitions, as in this case, the Select Panel prepared by the Board for appointment of teachers on the post on which the petitioners claimed to have been appointed and whose entitlement was pending consideration before the Supreme Court or writ petitions were pending otherwise before this Court, was also challenged.

Be that as it may on 26.08.2020 Civil Appeal no. 8300 of 2016 and other connected matters were disposed of in the following terms:-

"1. The present dispute is a reflection of the mess in the education system where starting from the primary level to the highest level adhocism seems to prevail in the appointment of teachers and lecturers in turn having consequences for the students who need to benefit from the best education process. That has not been so.

2. It is in the aforesaid circumstances that the impugned judgment (Writ Petition No.655 of 2014 Abhishek Tripathi vs. State of U.P. through Secy. Secondary Education, Lko. & Ors. decided on 17th December, 2015) has been rendered to bring an end to the adhocism which was prevailing. The impugned judgment recognizes the mess which is created to which all are contributory but ultimately deemed it proper to decline relief.

3. We have been hearing this matter from time to time to find the solution. We may say at the inception that we are not in disagreement with what has been set out in the impugned judgment but then this Court has the benefit of Article 142 of the Constitution of India to do complete justice between the parties and we are taking recourse to this to deal with the mess which is before us i.e. a complete adhocism in the working of the education system whereby TGTs and lecturers have been working for years and decades without a regularization. We do find that everyone is to blame for this scenario as what was an adhoc arrangement never fructified in the proper regularization or by holding examination in which recruitment could take place. If the recruitments did take place, that was periodic in terms of examination held after long period of time.

4. We have heard learned counsel for the parties at length earlier and even today to find a solution to the problem. Our attention has also been drawn to the last additional affidavit filed by the State of Uttar Pradesh and what emerges is that the State proposes to hold a competitive examination for recruitment of 15000 TGTs and lecturers both (if there are more existing vacancies reported as per rules, the Commission should take care to advertise even for those vacancies). Insofar as the parties before us are concerned, whether as appellants/petitioners or as interventionist, on verification it was found that there are 659 persons before this Court and out of them information regarding 112 persons could not be traced out in absence of details. The details are available only for 547 adhoc teachers (in view of appellants disputing, this is subject to further verification) being 84 lecturers and 463 TGT grade teachers as set out in paragraph 11 of this affidavit.

5. We did debate the issue whether a separate examination should be held for such persons or whether they should participate in the prospective examination process. Normally the difficulty arises on account of the age bar but i.e. undisputedly not a factor in the present case as everybody will be permitted to appear. At times separate examinations have been held in different situations but in the present case we are not concerned with persons who are working at a trade and have been away from the academics since the very nature of job of teaching envisages a continued academic pursuit and improving your skills in teaching.

6. A concern has been expressed by learned counsel for the appellants and applicants that there may be persons who may have rendered long period of service as adhoc and if they really participate in the examination and are even successful, they may not get benefit of the past service, specially retirement benefits, as some of them may be near the age of retirement than the fresh candidates.

7. It is in the conspectus of all the aforesaid circumstances that we consider appropriate to issue the following directions in exercise of power under Article 142 of the Constitution of India:

(a) All the petitioners/appellants and applicants before us and for that matter all persons eligible under the advertisement will be permitted to appear for one single examination.

(b) Such of the persons who are successful, would have to go through a process of interview insofar as the post of lecturers is concerned, as we are informed that the post of TGTs the interviews have been dispensed with.

(c) We are inclined to give some weightage to the persons who have worked as TGT and lecturers depending on the period of service rendered. It is respondent No.3-Commission which will have to tweak this aspect and work out giving some weightage to both TGT and lecturers depending on the period of service rendered. In the case of TGTs, such weightage will have to form a part of the total marks while in case of the lecturers such weightage can be given in the process of interview.

(d) The advertisement to be issued should contain the terms of these directions issued by us today.

(e) We make it clear that the decision as aforesaid will be final of the Commission and no further litigation will be entertained in respect thereof.

(f) Insofar as the verification of past service is concerned, the concerned teachers/lecturers would give the particulars and details to the Commission for obtaining such weightage and that aspect will be verified by the Commission in consultation with the State Government as we are told that it is the State Government which would have the wherewithal to do the needful. Needless to say that aspect will also be final without any further litigation being entertained in that behalf.

(g) In view of the weightage given, for the same the examination process can be completed.

(h) The other aspect is that apart from the weightage, the period which has been verified as having been spent in teaching as adhoc, would be counted for purposes of retiral benefits of the TGTs and Lecturers.

8. On having considered and on having issued the aforesaid directions, we also feel it is necessary to direct that we are not faced with such a situation in future. We would thus like to direct the State and the Commission to lay down a schedule for periodically holding examinations so that it creates employment opportunities and also the students are benefitted. We would require the Commission to not only take into consideration the existing but also future vacancies reported as per rules for purposes of holding such examinations in future. This should be strictly followed. The learned Advocate General states that this aspect is being taken care of.

9. In view of the petitioners/appellants in their own case having made the ground on the basis of Section 16-E(sub-section 11) of the Intermediate Education Act, 1971 that where teachers have been working for period against substantive vacancies temporarily, there is a provision to give benefits to them, we consider appropriate that the benefits of past service would be rendered only to such of the persons who have been appointed temporarily in accordance with the provisions of this Section. We expect the State to be fair in this matter in recognizing the various nature of vacancies which may have arisen.

10. We have also considered the prayer made in IA No.48618 of 2020 in SLP(Civil)Nos.19561-19562 of 2019. We have heard learned counsel for the parties on this aspect and have taken cognizance of the fact that there may be teachers/lecturers who are working and not paid for almost two years. The second concern is that till this examination process is completed, a prayer is made on behalf of the petitioners/appellants and the applicants that they should be permitted to continue.

11. On having examined the issue, we feel it will be appropriate to direct that the teachers/lecturers who are employed at present the TGTs and lecturers would continue to be so employed till the aforesaid process is completed and to the extent the financial benefits are given by the State Government to the institutions, against appointments made in compliance with Section 16-E (subsection 11) of the Act, the same will also be given to provide succour to the TGT/lecturers.

12. We end with the hope that we will never be faced with the aforesaid situation again and the State Government and the Commission will also make every endeavour to ensure that the order is complied in its true intent and spirit and specially the aspect of holding examinations for the future taking into consideration all current and future vacancies reported as per rules is followed in times to come. We need not emphasize that education in a very important role performed by a State apart from the area of medical assistance to citizens and thus it is necessary that the full benefit is extended to the students which can only take place if the full strength of teachers is available at the requisite time. This in turn requires compliance with the aforesaid directions for the future.

13. Since there is always hope, we hope for a better future.

14. The aforesaid exercise by the Commission in consultation with the State Government should be completed well in time to ensure that at least in the session commencing in July, 2021 all teachers up to date are in place.

15. All the appeals and special leave petitions are disposed of in terms aforesaid.

16. All pending applications also stand disposed of."

Now, as far as entitlement of the petitioner to the post of Lecturer (Civics) and his claim to salary of the post is concerned, the same has to be considered only in terms of the decision of the Supreme Court and there is no question of considering such claim separately and independently. Whatever right, if any, the petitioner has, it has to be determined only in terms of the aforesaid judgment of the Supreme Court and not otherwise. It is therefore directed that the concerned opposite parties shall consider as to what benefits the petitioner is entitled regarding continuance in service on the post in question, as also, regarding payment of salary in terms of the above quoted decision of the Supreme Court and a decision in this regard shall be taken accordingly. As regards, the challenge to the Select Panel, the locus of the petitioner to maintain such a challenge would depend upon the determination of his rights as aforesaid, meaning thereby, if he has a right to continue on the post in question and to receive salary, then of course consequences shall follow accordingly as per law. However, if the decision taken is that he does not have such a right, he would not have locus standi in the matter, therefore, this question is left open for consideration at the appropriate stage, based on the decision by the concerned opposite parties regarding the entitlement of the petitioner as aforesaid in terms of the decision of the Supreme Court. Consequences shall follow accordingly.

The petition is disposed of in aforesaid terms.

Order Date :- 16.3.2021

Lokesh Kumar