Vijay Singh And Another vs State Of U.P. Thru Secy Basic ...
2022 Latest Caselaw 4703 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad 
 
(Lucknow)
 
*************
 
Reserved
 
Judgment Reserved on 24.05.2022
 
Judgment Delivered on 31.05.2022
 
(1) Case :- WRIT - A No. - 31509 of 2021 
 

 
Petitioner :- Vijay Singh And Another 
 
Respondent :- State Of U.P. Thru Secy Basic Education And Others Counsel for Petitioner :- Amit Kr. Singh Bhadauriya, L.B.Singh Bhadauria,Sumit Kumar Singh,Vivek Verma 
 
Counsel for Respondent :- C.S.C.,Ran Vijay Singh 
 

 
(2) Case :- WRIT - A No. - 26396 of 2021
 

 
Petitioner :- Satish Kumar Maurya And Ors.
 
Respondent :- State Of U.P. Thru. Secy. Basic Edu. Lko. &Ors.
 
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya, L.B.Singh Bhadauria
 
Counsel for Respondent :- C.S.C.,Mahendra Kumar Mishra,Ran Vijay Singh
 

 
(3) Case :- WRIT - A No. - 9615 of 2020
 

 
Petitioner :- Farha Moin And Others
 
Respondent :- State Of U.P. Thru. Secy. Basic Edu. Lko & Ors
 
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya, Ishita Yadu
 
Counsel for Respondent :- C.S.C.,Ajay Kumar
 

 
(4) Case :- WRIT - A No. - 9618 of 2020
 

 
Petitioner :- Pravin Kumar Singh And Others
 
Respondent :- State Of U.P. Thru. Secy. Basic Edu. Lko And Others
 
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya,Ishita Yadu
 
Counsel for Respondent :- C.S.C.,Ajay Kumar
 
(5) Case :- WRIT - A No. - 9308 of 2020
 

 
Petitioner :- Anita Mishra
 
Respondent :- State Of U.P. Thru Secy. Basic Edu. Lko. And Ors.
 
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya,Ishita Yadu,Lal Bahadur Singh Bhadaur
 
Counsel for Respondent :- C.S.C.,Ajay,Ran Vijay Singh
 

 
Hon'ble Rajan Roy,J.

1. Heard learned counsel for the parties.

2. The is a bunch of petitions filed by the petitioners who are working as Shiksha Mitra.

3. The services of Shiksha Mitra had earlier been absorbed on the post of Assistant Teacher in pursuance to a Government policy in this regard, however, the matter was put to challenge before the High Court and thereafter it went before Hon'ble the Supreme Court and ultimately the said policy was set aside, however, certain directions were issued in pursuance to which the State Government amended the Rules so as to give some weightage to Shiksha Mitras in selection for the post of Assistant Teacher. Weightage of 2.5 marks per year of service as Shiksha Mitra was to be given.

4. Based on the aforesaid policy, the petitioners herein participated for the Assistant Teachers Recruitment Examination, 2019 and passed the same. Based on the result of the said examination further selection for appointment as Assistant Teacher was undertaken and in this process as stated earlier Shiksha Mitra were to be given weightage of 2.5 marks per year of their service as Shiksha Mitra. The petitioners filled up the form but while doing so, as mentioned in the impugned order, they filled wrong code i.e., Code No. 1, whereas, the correct code for Shiksha Mitra was Code No. 2. It is said that based on this code the software would segregate the Shiksha Mitras for the purposes of grant of weightage aforesaid. The petitioners having filled the incorrect code were accordingly not given the weightage. Accordingly, they could not secure more marks than the cut off for selection and appointment as Assistant Teachers.

5. Counsel for the petitioners says that as per guidelines dated 01.12.201 and Appendix-I thereto Code No. 2 was meant only for such Shiksha Mitra who had completed their B.T.C. Training through distant learning mode and Code No. 2 did not apply to other Shiksha Mitras such as the petitioners who had completed their two years B.T.C. Training in regular mode. In this context, he invited attention of the Court to a Government Order dated 01.09.2011 which reserved 10% of the seats in B.T.C. Training Course for Shiksha Mitra to contend that based on the said Government Order, the petitioners got themselves admitted to the B.T.C. Training course while working as Shiksha Mitra and completed the same in regular mode. After completing the two years Course, they resumed their duties as Shiksha Mitra. It is said that there were other Shiksha Mitra who acquired B.T.C. Training course through distant learning mode while working as Shiksha Mitra, hence there were two types of Shiksha Mitras as aforesaid.

6. The submission is that Code No. 2 as is evident from the language used therein was for such Shiksha Mitras who had completed two years B.T.C. Training course through distant learning mode and not the regular mode. It is Code No. 1 which applied to the regular mode B.T.C. Training Course. In this regard, learned counsel for the petitioners invited attention of the Court to the certificate issued to the Shiksha Mitras who had completed their B.T.C. Training through distant learning mode, which mentions the words "vizf'kf{kr f'k{kk o Lukrd f'k{kkfe=ksa dk i=kpkj ch0Vh0lh0 izf'k{k.k f}o"khZ; ikB~;dze ijh{kk o"kZ 2014" viz-a-viz the recital in the certificate issued to the regular mode students which did not contain the said words. Furthermore, he invited attention of the court to the Full Bench Decision in the case of Anand Kumar Yadav & Ors. vs. Union of India & Ors.; 2015 SCC OnLine All 3997 specifically paragraphs 33 and onwards wherein the proposal of the State Government for distant mode learning was dealt with.

7. Learned counsel for the petitioners, Mr. Bhadauriya, tried to show that there were two types of Teachers some were Shiksha Mitras and for some the term untrained Graduate Shiksha Mitras has been used for whom the proposal for distance learning was mooted by the State Government. Based on it, he submitted that Code No. 2 of Appendix-I of the Government Order dated 01.12.2018 when read conjointly with the certificate issued to the Shiksha Mitras who had acquired the B.T.C. Training course through distant learning mode and the recitals contained in paragraph 33 to 36 of the Full Bench decision of this Court in Anand Kumar Yadav & Ors. (supra), it is amply clear that the language used therein is similar to the one used in Code No. 2, therefore, Code No. 2 applied only to such Shiksha Mitras who had completed B.T.C. Training through distant learning mode.

8. Mr. Ran Vijay Singh, learned counsel for the State vehemently opposed the writ petitions and stated that the submission of the learned counsel for the petitioners is based on misreading of the documents on record. In this context, he invited attention of the Court to the relevant extracts of the software for submitting the online application form which has been annexed by the petitioners themselves as Annexure No. 18 to the writ petition to contend that Code No. 2 mentioned in the said software clearly mentions two types of Shiksha Mitras: one who had completed their training through distant learning mode and others who had completed the training without the aid of distant education. He also invited attention of the Court to the form submitted by the petitioners wherein the petitioners had mentioned their code as Code No. 1, accordingly the software did not detect their status as Shiksha Mitra and no weightage could be provided to them. He has submitted, on the basis of the impugned order, that out of 4.5 lakhs applicants who had applied for the selection, 4.09 lakhs candidates appeared in the examination and out of these 48973 were Shiksha Mitras who had filled Code No. 2. Out of these, 8018 candidates were successful but 138 candidates filled the wrong code i.e., Code No. 1, therefore, on account of the error committed by them while filling the form for Assistant Teachers Recruitment Examination, 2019, they were not considered as Shiksha Mitra in the said selection and no weightage could be provided to them. Even out of these 138 Shiksha Mitras, 13 were able to qualify on the basis of their own merit corresponding to Code No. 1 i.e. without the weightage meant for Code No. 2 candidates, in the third round of counselling. He says that the petitioners having incorrectly filled the form cannot now turn around and seek any relief from this Court. He further submitted that though earlier the decision was to give two opportunities to such Shiksha Mitras for appearing in the selection for Assistant Teacher with weightage and both the opportunities have been exhausted by the petitioners but in view of the subsequent decision of Hon'ble the Supreme Court in the case of Ram Sharan Maurya & Ors. vs. State of U.P. & Ors.; 2020 SCC OnLine SC 939, a third opportunity is required to be given in view of the observations/directions contained therein. The petitioners can avail this opportunity when the occasion arises. He referred to various decisions relied in the impugned order to oppose the claim of the petitioners.

9. Having heard learned counsel for the parties and perused the record, the Court finds that in Appendix-I to the Government Order dated 01.12.2018 Code No. 2 reads as under:

"fof/k }kjk LFkkfir ,oa ;w0th0lh0 ls ekU;rk izkRr fo'ofo|ky;@egkfo|ky; ls Lukrd ijh{kk mRrh.kZ rFkk nwjLFk f'k{kk fof/k ls vizf'kf{kr o Lukrd f'k{kfe=ksa dk f}o"khZ; ch0Vh0lh0 mRrh.kZ gksus ds lkFk mRrj izns'k f'k{kd ik=rk ijh{kk ¼;w0ih0Vh0bZ0Vh0½@dsUnzh; f'k{kd ik=rk ijh{kk ¼lh0Vh0bZ0Vh0½ mRrh.kZ vH;FkhZ"

10. Based on this learned counsel for the petitioners contended that the code referred to untrained and graduate Shiksha Mitra who had completed B.T.C. Training course through distant learning education.

11. The use of word "vizf'kf{kr" quoted hereinabove in Code 2 is inexplicable. It appears to be a typographical error. The proper wording should have been "nwjLFk f'k{kk fof/k ls izf'kf{kr". It is this use of the word "vizf'kf{kr" which appears to have led to the confusion which has given rise to the argument aforesaid.

12. The argument appeared to be attractive at first blush, however, on a perusal of the extract of the online application form contained in the software as annexed by the petitioners as Annexure-18, which the candidate was required to fill, the Court finds that the Code No. 2 therein reads as under:

"2.f'k{kkfe= (nwjLFk f'k{kk fof/k ls izf'kf{kr o Lukrd f'k{kkfe= dk f}o"khZ; ch0Vh0lh0 mRrh.kZ)"

13. A perusal of this extract clearly shows that the said code refers to Shiksha Mitra and in bracket it refers to two categories of Shiksha Mitras: one is the category which has been trained through distant education mode and another the category of Graduate Shiksha Mitra who had completed two years B.T.C. course. The alphabet '(o)' is disjunctive otherwise there can be no justification for the use of alphabet '(o)' as, for completing the B.T.C. course as informed by the counsel for the petitioners himself, Graduation was must. Of course, if the language was much more clear in the Government Order dated 01.12.2008, this confusion would not have arisen, but considering the language used in the online application form there is no doubt that for Shiksha Mitra the code was No. 2, and not No. 1. The petitioners did not fill in Code No. 2 in their online application form on account of which the software did not identify them as Shiksha Mitra, consequently they did not get weightage referred above. The applications having been processed online, no relief prayed for in the writ petition can be granted to the petitioners in view of the wrong code having been filled by them. Moreover, all the 69,000/- posts have been filled up and appointment letters have been issued. No doubt, the Government had earlier taken a decision vide Government Order dated 04.12.2020 to consider the case of such Shiksa Mitras who had filled the wrong code but subsequently it seems that the matter was referred to the Law Department and the claim of the petitioners was declined vide order dated 30.07.2021, however, this order was put to challenge in Writ Petition No. 26396 (SS) of 2021 and some observations were made therein about it being cryptic and laconic. Thereafter, the impugned order dated 29.11.2021 has been passed declining the claim of petitioners for reasons aforesaid.

14. For the reasons aforesaid, the Court does not find any ground for interference with the impugned order under Article 226 of the Constitution of India. It is, however, left open to the State Government to consider the appointment of the petitioners and other similarly situated if there are vacancies available on account of non-joining of any selected candidate which had been advertised for the selection in question, if the petitioners, after being given weightage of 2.5 marks per year of service as per Rules/Policy applicable, would have scored more than the cut off mark and would thereby fall in the merit list. It is open for the State Government to do so and this judgment will not come in its way in this regard. This will not entail displacement of any candidate already appointed.

15. The petitions are Disposed of in the aforesaid terms.

[Rajan Roy, J.]

Order Date :- 31.05.2022

Santosh/-