The Board Of Basic Ducation vs Dinesh Singh And 2 Others
2023 Latest Caselaw 8150 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- SPECIAL APPEAL No. - 100 of 2023
 

 
Appellant :- The Board Of Basic Education
 
Respondent :- Dinesh Singh And 2 Others
 
Counsel for Appellant :- Yatindra
 
Counsel for Respondent :- C.S.C.,O.P.S. Rathore
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Budhwar,J.

Heard Sri Yatindra learned counsel for the appellant, Sri Ashok Khare learned Senior Advocate assisted by Sri O.P.S. Rathore learned counsel appearing for respondent no. 1 and learned Standing Counsel appearing for the State-respondent nos. 2 and 3.

The challenge in the present appeal is to the judgment and order dated 12.1.2023 passed by the learned Single Judge quashing the order dated 25.6.2022 issued by respondent no. 2 namely the Secretary, Board of Basic Education, U.P., Allahabad issuing direction to prepare the seniority list according to Sub-Rule (1) of Rule 22 of the Rules, 1981 for determining the seniority from the date of joining of the petitioners namely respondent no. 1 herein including all other petitioners in the said bunch.

We may note that the controversy started with the challenge to the allocation of district to the selected candidates on the post of Assistant Teacher in Junior Basic Schools run by the Basic Shikha Parishad. In Writ-A No. 19737 of 2018 (Shika Singh and 48 other vs. State of U.P. and 3 others) connected with other writ petitions, vide judgment and order dated 29.8.2019. Following directions were issued in respect to the allotment of district to MRC (Meritorious Reserved Category) candidates only:-

"59. The respondent no. 3 is directed to carry on process of allotment of district to MRC candidates only, treating them to be reserved category candidates only for the purposes of allotment of district of their preference. It is further directed that the MRC candidates who alleged that they have not been allotted district of their preference despite being MRC candidates, may file their applications before the respondent no. 3 within a period of 3 months from today and the respondent no. 3 is directed to consider and pass necessary order, as per law stated hereinabove within next 3 months.

60. The order passed by the respondent no.3 shall be given effect from next academic session, i.e., 2020-21, so that the teaching of students is not suffered."

On a challenge made by the General category candidates and the Board of Basic Education to the above directions, the Special Appeal No. 274 of 2020 (Amit Shekhar Bhardwaj vs. State of U.P. and 2 others) connected with other appeals were decided vide judgment and order dated 14.9.2021 to the following extent, on the consensus arrived between the counsels appearing for both sides as well as consent of the Board:-

"26. We have given a thoughtful consideration to the argument advanced from both the sides and looking to the facts that examination was conducted in the year 2018, and, placement/posting being given in the said year and candidates having joined at their respective place of posting in 2018 itself, with the consensus arrived at between the counsels of both the sides as well as consent of the Board, we are proposing to pass the following order :

I. The candidates already selected/posted and working in the respective district of any category, shall not be disturbed.

II. The judgment in favour of the Meritorious Reserved Caste Candidates is not interfered. The petitioners-appellants belonging to Reserved Caste category would submit an application before the Board for change of posting pursuant to the judgment of the learned Single Judge within a period of two months of this judgment. The Board would thereupon process the case and post them as per their choice within two months. This direction would not be applicable in general but limited to the petitioners-appellants whose writ petitions were allowed by the learned Single Judge.

III. The appellants and Intervenors belonging to Open General category shall give option of three districts for their posting which would be considered by the Board within two months. They would be posted in any of the district of their choice subject to availability of the vacancy in the district concerned."

It is argued by Sri Yatindra learned counsel for the appellant that once concession has been given by the petitioner/respondent no. 1 herein before the Special Appellate Court and the directions were issued by the Special Appellate Court, it was not open for them to agitate the issue in relation to seniority as determined by the order dated 25.6.2022 which is consequent to the order of the Special Appellate Court.

It is argued that the issue in relation to seniority of already posted candidates was agitated before the Special Appellate Court. The Special Appellate Court did not return any finding on the said issue and decided the matter with the consent of the counsels for the parties. The argument is that once consent has been given by the candidates namely MRC candidates, who were petitioners in the first round of litigation, they are estopped from raising the issues in the second round.

We find inherent fallacy in the argument made by the counsel for the appellant for the simple reason that the issue pertaining to the seniority of already posted candidates was agitated at the ends of those persons before the Special Appellate Court, who were the candidates belonging to General category and the Board of Basic Education (the appellants therein).

So far as the Meritorious Reserved Category (MRC) candidates, i.e. the petitioners in the first round of litigation, they filed impleadment applications before the Special Appellate Court to implead them as respondents to agitate the claims of the appellants therein. Any concession given on the part of the MRC candidates before the Special Appellate Court would not mean that they cannot challenge the order dated 25.6.2022 of the Board. Rather the Board or the General category candidates who gave concession before the Special Appellate Court given up their challenge in relation to the dispute pertaining to seniority, are estopped from raising such a challenge. It does not lie in the mouth of the Board to claim that the MRC candidates/petitioners (in the first round of litigation) were not entitled to claim seniority on their posting in another district as per their preference, in accordance with the decision of the learned Single Judge affirmed by the Special Appellate Court in terms of the concession given by the parties as noted above.

In our considered opinion, the directions issued by the Secretary, U.P. Basic Education Board, Prayagraj in the order dated 25.6.2022 for applying Rule 22 readwith Rule 21 of U.P. Basic Education (Teachers Service) Rules, 1981 was an illegal exercise of power and has rightly been set aside by the learned Single Judge holding that the aforesaid rules have no application in a case where the initial placement of MRC candidates after selection was found to be defective.

It may be noted that in an open selection, the appointment of candidates as Assistant Teacher in the Basic Education institutions is district-wise. On their joining, their services are to be governed by the Rules, 1981 and on seeking transfer after joining, in accordance with the Rule 22, they will loose their seniority. This analogy cannot be drawn in a case where initial placement of the candidates district wise was itself defective.

Learned Single Judge has rightly noted that the undertaking given by the petitioners during their joining as per the initial placement would not have any binding effect, inasmuch as, they were compelled and the affidavits were given by them in anxiety to secure their joining and not to secure transfer to the district of their choice.

It was incumbent upon the Board to place the candidates in order of their merit considering their choice and the arbitrary action of the Board of Basic Education in proceeding to allot the district to the selected candidates as per their choice without considering their respective merit has already been set aside in the first round of litigation, with respect to the Meritorious Reserved Category (MRC) candidates.

For all the above noted reasons in addition to what has been held by the learned Single Judge, we do not find any merit in the challenge.

The appeal is dismissed, accordingly.

It goes without saying that the issue in this litigation is only pertaining to the Meritorious Reserved Category (MRC) candidates and, in no case, it can be of any benefit to any other category candidate.

Order Date :- 21.3.2023

Brijesh