Rashmi Gupta vs State Of U.P. Through Secy. ...
2022 Latest Caselaw 653 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 4
 

 
Case :- WRIT - A No. - 7133 of 2012
 

 
Petitioner :- Rashmi Gupta
 
Respondent :- State Of U.P. Through Secy. Secondary Edu. Deptt. Lko. And Ors
 
Counsel for Petitioner :- H.G.S.Parihar,Smt. Meenakshi Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard.

Learned counsel for the petitioner is directed to implead the U.P. Secondary Education Services Selection Board as an opposite party during the course of the day.

The petitioner, who is an Ad-hoc Teacher, has filed this writ petition way back in 2012 claiming the following reliefs:-

"i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 1.12.2012 passed by the opposite party no. 3 as contained in Annexure No. 1 to the writ petition.

ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to make payment of salary to the petitioner to the post of Assistant Teacher L.T. Grade(General) in each and every month, with effect from the date of her joining i.e. 27.11.2012.

iii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to interfere in the functioning of the petitioner in any manner whatsoever."

The petitioner has inter alia challenged the order dated 01.12.2012 passed by the D.I.O.S., Gonda by which he has held the selection and appointment of the petitioner by the Managing Committee to be illegal and against the provisions of law. The petitioner has been getting salary in pursuance to interim order dated 10.01.2013 passed in this case. However, subsequently a bunch of writ petitions were decided in the case of Sanjay Singh Vs. State of U.P. and Ors.; Writ Petition No. 3348 (S/S) of 2012 wherein a direction was issued for payment of salary to such teachers as the petitioner. Ultimately, in view of the conflicting decisions of this Court on the issues the matter was referred to a Larger Bench in Writ Petition No. 655 (S/S) of 2014; Abhishek Tripathi Vs. State of U.P. and Ors. wherein the ratio of the decisions in Sanjay Singh's case (supra) was upturned. Against the said judgment in Abhishek Tripathi (supra) dated 17.12.2015 Special Leave Petitions were filed which were converted into Civil Appeals leading Civil Appeal No. 8300 of 2016 which have been finally decided on 26.08.2020.

Now, in pursuance thereof the Board has issued two Advertisements bearing 1 of 2021 and 2 of 2021 wherein the Ad-hoc teachers such as the petitioner were also given one opportunity to participate in the selection and if they succeed then they would be appointed, otherwise they would have no other claim to appointment.

Shri R.K.Singh Suryvanshi, learned counsel is present on behalf of the Board. He invites the attention of the Court to the decision of Hon'ble the Supreme Court in Sanjay Singh's case (supra) to submit that the matter is covered by the said judgment.

Learned counsel for petitioner is not aware as to whether his client has appeared in the selection or not.

Be that as it may, the issue in question is covered by the judgment dated 26.08.2020 rendered by Hon'ble the Supreme Court in Civil Appeal No. 8300 of 2016; Sanjay Singh and Ors. Vs. State of U.P. and Ors. which reads as under:-

"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 judgement (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 (sub section 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."

The petitioner herein claims to be appointed under Section 16E(11) of the Intermediate Education Act, 1921. Subsequently, in contempt petition i.e. M.A. No. 818 of 2021 before Hon'ble the Supreme Court an order was passed on 07.12.2021 in the following terms:-

"We have perused the affidavit filed by the State Government. In terms of para 8, 1446 ad hoc teachers applied under Trained Graduate Teacher (TGT) category and 9 ad hoc teachers applied under the Post Graduate Teacher (PGT) category and claimed weightage on the ground of service as an ad hoc teacher. The Board directed the District Inspectors of Schools to verify the details of these candidates who had claimed weightage as ad hoc teachers. Out of these, on verification, it was found that 150 applicants were not even working as ad hoc teachers and they had claimed weightage by giving false information. That, in our view, put an end to their story.

Out of the 1296 TGTs., 126 applicants have been found appointed ad hoc following procedure as prescribed, under Section 16E (11) of Intermediate Education Act, 1921 (for short, "the Act") and accordingly weightage was given to these ad hoc teachers.

The aforesaid having been verified, one of the pleas raised by the applicants is that at least these people should be released their salary. We feel this is an appropriate direction to be passed for release of arrears of salary for these 126 persons, naturally if not already paid.

It is next set out in the affidavit that 9 applicants had applied under the PGT category, but it was found that without following the procedure prescribed under the aforesaid Section, they were so recruited.

Insofar as the 126 candidates are concerned, due to low performance in the written examination, 123 candidates could not be selected in the final merit list for TGT category and 3 candidates have been selected in the final merit list. It has thereafter been set out that under the TGT category, 16 candidates have been selected even without giving weightage marks and similarly 3 ad hoc graduate teachers have also been selected in PGT category without giving weightage marks.

On query from the Court, Mr. Vikas Singh, learned senior counsel appearing for the Selection Board states that if weightage had been given, 15 candidates would have made it in TGT and 3 would have made it in PGT. This is premised on the basis that if such weightage was given to all the 1296 candidates.

Thus, the only issue remains for consideration of these 18 persons appointed who are stated to had not been strictly appointed in terms of Section 16(E) 11 of the said Act.

In view of the large number of vacancies in recruitment and the passage of time for which they have worked, to put a quietus to the issue, we consider appropriate that these 18 people may also be given appointment. We do so by exercising our jurisdiction under Article 142 of the Constitution of India to do complete justice to the parties. The list of these applicants be published on the web site within a week.

Insofar as the persons who have informed not to have been recruited in compliance of Section 16 (E) 11, that does not take away the obligation of the Institute to pay those people the salary having taken work from them. This is the burden of the Management and we cannot burden the Government.

Application stands disposed of.

The necessary action be taken by the respondent(s) within a maximum period of two months from today.

We make it clear that this puts a quietus to complete issue us and no further proceedings or before the High Court are to be the before entertained."

In view of the above discussion, nothing survives for adjudication in this writ petition as, the benefit, if any, to the petitioner would flow only from the judgment of the Supreme Court quoted hereinabove, that too, if she succeeds in the selection held in pursuance to Advertisement No. 1 of 2021 and 2 of 2021.

The writ petition is disposed of accordingly.

Interim order is discharged.

(Rajan Roy,J.)               

Order Date :- 7.4.2022

R.K.P.