Allahabad High Court
Smt. Veena Rai vs State Of U.P. Thru. Addl. Chief ... on 23 May, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:35962
Court No. - 17
Case :- WRIT - A No. - 7104 of 2022
Petitioner :- Smt. Veena Rai
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Basic Education, Lko. And 2 Others
Counsel for Petitioner :- Raj Kumar Upadhyaya (R.K.Upadhyaya),Avinash Pandey
Counsel for Respondent :- C.S.C.,Rahul Shukla,Sarvesh Kumar Dubey
AND
Case :- WRIT - A No. - 3718 of 2023
Petitioner :- Smt. Veena Rai
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Basic Edu., Lko. And 2 Others
Counsel for Petitioner :- Raj Kumar Upadhyaya (R.K.Upadhyaya),Avinash Pandey
Counsel for Respondent :- C.S.C.,Rahul Shukla,Sarvesh Kumar Dubey
Hon'ble Pankaj Bhatia,J.
1. Since both the writ petitions arise out of the same issue, they are being decided together.
2. Despite time being granted on 21.10.2022 in Writ - A No.7104 of 2022, no counter affidavit has been filed. No specific reasons are forthcoming as to why the counter affidavit has not been filed.
3. Despite the fact that Writ - A No.7104 of 2022 is pending and no counter affidavit has been filed, the respondents have proceeded to advertise the post in question on which the petitioner claims to be entitled. The said advertisement is under challenge in Writ - A No.3718 of 2023.
4. The facts, in brief, are that the petitioner was appointed on the post of Music Teacher on contractual basis in terms of the advertisement issued on 03.11.2014. In terms of the said advertisement, for the post of music teacher, the requirement was specified in the advertisement and contained in Coloumn No.4. As the petitioner was possessing the requisite qualification, the petitioner filled the form, however, while filling the form, the petitioner disclosed the qualification of the petitioner and the marks obtained in the High School, Intermediate, B.A., B.Ed and TET, which according to the petitioner, were in consonance with the requirements specified in the advertisement.
5. The claim of the petitioner is that on the date of application, the petitioner also possessed the Bachelors Degree in Music, however, the same was not filled in the form as there was no specific requirement to do so. Subsequently, a circular was issued on 14.07.2020 mainly on the ground that while making the appointments, certain irregularities were noticed and to correct the said irregularities, the aim of the circular was to verify the documents of the various appointees on contractual basis so as to ensure that the persons appointed possess the minimum requisite qualification, subject-wise.
6. It is stated that the said circular was quashed by this Court vide judgment dated 21.12.2021 passed in Writ - A No.9673 of 2021. The said judgment was affirmed in Special Appeal No.222 of 2022. It is informed that against the said special appeal, an SLP was preferred before the Hon'ble Supreme Court being S.L.P. No.13553 of 2022 in which an order came to be passed on 02.09.2022 staying the impugned orders as well as any directions passed in the contempt proceedings.
7. It is informed at the Bar that the intervenors in the SLP had moved an application for appropriate orders/directions in view of the subsequent advertisement issued, which came to be rejected by the Hon'ble Supreme Court vide its order dated 02.05.2023.
8. Submission of learned counsel for the petitioner is that the petitioner has been non-suited, despite clear directions given by this Court in its order dated 09.05.2022 passed in Writ - A No.20614 of 2021 only on the ground that at the time of filling of the form, the petitioner had not disclosed about the degree of music possessed by her. On the basis of the fact that the petitioner did not disclose the degree of music possessed by her while filling the form in the year 2014, a presumption was drawn that the petitioner does not possess the requisite qualification for appointment as a music teacher.
9. Learned counsel for the petitioner argues that in terms of the directions given by this Court in its order dated 09.05.2022, steps were taken for verification of the degree possessed by the petitioner (however not disclosed in the form filled in the year 2014), and the same was found to be correct as is observed in the impugned order itself and was verified by the District Basic Education Officer, Barabanki.
10. In the light of the said, the short submission of learned counsel for the petitioner is that the contract of the petitioner ought to have been renewed as was done in the case of similarly placed persons and the vacancy should not be re-advertised as has been done by the respondents.
11. The issue with regard to the order passed against the petitioner holding that the petitioner did not possess the requisite qualification merely because the same was not disclosed in the form filled by the petitioner in the year 2014, is subject matter of Writ - A No.7104 of 2022 in which no counter affidavit has been filed despite time being granted.
12. Considering the validity of the order dated 07.09.2022 which is solely based upon the fact that while filling the form, the petitioner did not disclose the possession of degree of music, the same cannot be accepted as in the advertisement itself, there was no requirement except to disclose the degree possessed by the petitioner which the petitioner did while filling the form. The requirement of producing the degree of music, came into being only after the circular was issued by the respondents being Circular dated 14.07.2020.
13. Without going into the question of Circular dated 14.07.2020 being quashed, what transpires is that there was no requirement of disclosing the degree of music at the time of filling the form, which is the sole foundation for passing of the order against the petitioner.
14. In view of the directions given by this Court in its order dated 09.05.2022, it was clearly incumbent upon the respondents to have taken a decision based upon the degree of music produced by the petitioner and which was duly verified by the District Basic Education Officer, Barabanki, which has not been done.
15. As no counter affidavit has been filed for the reasons best known to the respondents and steps are being taken for filling the said vacancy through fresh recruitment in terms of the advertisement, this Court is left with no other alternative but to decide the case on the basis of the material available.
16. The order dated 07.09.2022 annexed as Annexure - 2 of Writ Petition No.7104 of 2022 is ex-facie arbitrary as the directions given by this Court in its order dated 09.05.2022 passed in Writ - A No.20614 of 2021 have not been complied with, as such, the said order is quashed.
17. Respondents are directed to pass a fresh order taking into consideration the degree of music produced by the petitioner and duly verified by the District Basic Education Officer, Barabanki.
18. The decision, as directed above, shall be taken within a period of two weeks from today.
19. In case, the persons who are similarly situated have been kept on contract, an order shall also be passed in the case of the petitioner to that effect.
20. It is further provided that the filling of the seat as advertised shall be subject to the outcome of the directions given in the case of the petitioner in respect of one post of music teacher.
21. Both the writ petitions stand disposed off in above terms.
Order Date :- 23.5.2023
nishant
