Allahabad High Court
Arvind Singh And 44 Others vs State Of U.P. And 2 Others on 2 February, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:17936
Reserved on : 29.01.2024
Delivered on : 02.02.2024
Court No. - 36
Case :- WRIT - A No. - 8344 of 2023
Petitioner :- Arvind Singh And 44 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate
Counsel for Respondent :- C.S.C.,Archana Singh,Ashish Kumar (Nagvanshi)
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Himanshu Singh, learned counsel for petitioners and Ms. Archana Singh, learned counsel for respondent No.3.
2. The petitioners before this Court belonged to 'Meritorious Reserved Category Candidate' (for short "MRC"), however, they were not allotted their preferred districts in pursuance of their appointment as Assistant Teacher despite other reserved category candidates on lower merit were granted appointment at their preferred district.
3. A co-ordinate Bench of this Court has considered above issue in a judgment passed in Shikha Singh and others Vs. State of U.P. and others, 2019 (10) ADJ 158, wherein following directions were passed :
"54. Thus the decision of the authorities is contrary to Article 16 as has been held by the Hon'ble Apex Court.
55. The contention raised by Shri H.N. Singh, learned Senior Advocate is that the petitioners have been allotted district and they have joined in their place of posting, thus they cannot be shifted to any other district, without following the procedure prescribed under Uttar Pradesh Basic Education (Teachers) (Posting) Rules 2008 is concerned, one advertisement was issued inviting applications for the post of 68500 Assistant Teachers in Basic School and Junior Basic School managed by the U.P. Basic Shiksha Parishad. In pursuance of the aforesaid advertisement, one examination, i.e., ATRE 2018 was conducted by the Regulatory Authority on the basis of aforesaid examination 41556 candidates were declared eligible and successful. Consequentially by one government order the process for appointment of 41556 candidates was initiated. In the process of appointment, MRC candidates have been discriminated, as the process of appointment had been completed in two phase. It is well settled that the process of selection starts from the issuance of advertisement inviting applications and is completed on appointment. The process of selection and appointment had been completed in two phase. In first phase, 34660 candidates were given appointment and in the second phase, 6136 candidates have been given appointment but the facts remained that all these candidates have been given appointment as a result of one selection process. In the process of appointment, MRC candidates have been put in disadvantage, as has been held by the Apex Court in the cases of C.M. Thri Vikrama Varma (supra) and Tripurari Sharan (supra).
56. So far as the objection raised by the respondents that the petitioners have joined their place of posting without any protest, as such they are estopped in law from challenging their place of posting is concerned, since the rights of MRC candidates guaranteed under Article Articles 14 and 16(1) of the Constitution of India has been violated, as has been held by the Apex Court in the cases of C.M. Thri Vikrama Varma (supra) and Tripurari Sharan (supra) the principle of estoppel and waiver will not be applicable against the legal and constitutional rights.
57. The allocation of district and appointment and joining of the teachers in their respective districts had been completed in academic year 2018-19. The said posting and allocation of district being contrary to law and in violation of Articles 14 and 16(1) of the Constitution of India, cannot be sustained.
58. In view of the law laid down by the Apex Court, the allotment of district made by the respondents cannot be sustained in so far as it relates to MRC candidates and to that extent, it is quashed.
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."
[emphasis supplied]
4. The aforesaid order was challenged by State in various Special Appeals, which were disposed of by Division Bench by an order dated 14.09.2021 in case of Amit Shekhar Bhardwaj Vs. State of U.P. and 2 others (Special Appeal No.274 of 2020) along with other connected matters, and the relevant directions passed therein are reproduced hereinafter:-
"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."
[emphasis supplied]
5. Learned Senior Counsel for petitioners has submitted that during pendency of special appeals, petitioners have approached this Court by way of filing a writ petition bearing No.2347 of 2021 (Anshuman Pal and 82 others Vs. State of U.P. and 2 others), which was initially adjourned, waiting for the outcome of Special Appeals pending before the Division Bench and later on after above referred judgment was passed by Division Bench on 14.09.2021 and subsequently the writ petition was disposed of by order dated 14.09.2022. The said order is reproduced hereinafter:-
"Heard Sri Sanjai Singh Yadav and Shri Namit Srivastava, learned counsel for the petitioners and learned Standing Counsel for the State-respondent No. 1 & 2 and Shri Arun Kumar, learned counsel for respondent No. 3.
Counsel for the parties agreed that this petition is covered by the judgment passed in Writ-A No. 19737 of 2018 which was challenged in Special Appeal No. 274 of 2020 and has been decided by the following direction :-
"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.
27. The directions given hereinabove are with the consent of the parties thus, it would not be treated to be precedence. If fresh litigation comes, it would not be driven by this judgment."
Learned Standing counsel as well as counsel for the respondent No.3 has not disputed the said position.
In view of the above, the writ petition is decided in terms of the direction issued by Division Bench of this Court in Special Appeal No. 274 of 2020.
Writ petition is, accordingly, disposed of.
[emphasis supplied]
6. Learned Senior Counsel for petitioners submitted that in pursuance of above referred order, case of the petitioners were considered, however, representations were rejected by impugned order dated 13.02.2023 on ground that writ petition filed by petitioners was not finally decided before the Division Bench pronounced the judgment on 14.09.2021.
7. Learned Senior Counsel further submitted that factually, it is not under dispute that earlier writ petition filed by petitioners was disposed of only after judgment was pronounced by Division Bench, however, it is also not under dispute that when matter was pending before Division Bench, petitioners have approached learned Single Judge by way of filing writ petition and their writ petition was repeatedly adjourned, waiting the outcome of special appeal and later on was disposed of in terms of judgment passed by Single Judge in Shikha Singh and others (supra) reported in 2019(1) ADJ 158, in case the writ petition was disposed of earlier, petitioners' case were squarely fall within observation and direction passed by Division Bench.
8. Learned Senior Counsel further submitted that even when earlier writ petition was disposed of, it was directed to consider case of the petitioners in light of observation made by Division Bench i.e. to grant its benefit to them, however, respondents have taken a very strict view of observation made in Division Bench judgment and its benefit was wrongly not granted to petitioners.
9. The aforesaid submissions are opposed by Ms. Archana Singh, learned counsel for respondent No. 3 that even in similar circumstances, some of writ petitions as well as special appeals thereof were dismissed and she referred the judgment passed by Division Bench in case of Tiwari Manish and others Vs. State of U.P. and others, Special Appeal Defective Nos. 1048 of 2021 and 92 of 2022 (O & M) as well as later on a judgment passed by Division Bench in Hina Islam Vs. State of U.P. and 2 others, Writ- A No.- 8949 of 2022 along with connected matters. The relevant part of Tiwari Manish and others(supra) is reproduced hereinafter:-
"7. A perusal of the aforesaid order passed by Division Bench of this Court shows that the relief granted therein was on the basis of the consent between the parties as there were appeals filed by U.P. Basic Shiksha Board, which were disposed of by a consenting order. A direction was also issued that the same shall not be treated as a precedent for the reason that the Court had not given any judgment on the merits of the controversy. The idea behind it was that the issue, which already stood settled, should not be unsettled as the allocation of the districts to the candidates may entail some changes in the process, which had already been concluded, or may affect some of the candidates. The things which have already been settled, cannot be unsettled specially where there are large number of candidates still available, who have not challenged the order passed by the learned Single Judge. Any interference in the present appeals will open a floodgate and will not let the State to finalize the issue of allocation of districts to the selected candidates."
[emphasis supplied]
10. In rejoinder, learned Senior Counsel submits that case of petitioners are distinguishable on facts since their writ petition was pending when matter was seized by Division Bench as well as that there was an ambiguity in the order passed by Division Bench that none of the candidates belonging to meritorious reserved category were before the Division Bench as appellants.
11. Heard counsel for parties and perused the record.
12. This Court is bound by directions given by Division Bench in Amit Shekhar Bhardwaj (supra) which are already reproduced in earlier paragraph of this order. It is clearly mentioned therein that it was passed on consensus arrived between parties and that in later part of direction No.2, it was specially mentioned that "This direction would not be applicable in general but limited to the petitioners-appellants whose writ petitions were allowed by the learned Single Judge".
13. If a strict interpretation is taken of the above direction, the petitioners would not get any relief. The only factor which tilt towards the petitioners is that they have filed writ petitions when Division Bench was seized with special appeals and their writ petition was adjourned to wait the outcome of special appeals and later on it was disposed of in terms of Amit Shekhar Bhardwaj (supra).
14. I have carefully perused the order passed by this Court when earlier writ petition was disposed of. It does not distinguish the case of petitioners. It does not state that whether petitioners are entitled to take benefit of judgment passed by Division Bench in Amit Shekhar Bhardwaj (supra) or not?
15. It was left on concerned State-respondents to take a decision on its own and State-respondents have taken a decision strictly following the directions passed by Division Bench in Amit Shekhar Bhardwaj (supra) where benefit was limited to candidates whose writ petitions were allowed before judgment was passed.
16. This Court can take a view that since writ petitions of petitioners were pending, waiting the outcome and were disposed of only after Division Bench passed judgments of special appeal in Amit Shekhar Bhardwaj (supra), the benefit of it may be granted to them also, however, learned counsel for respondent has brought on record the subsequent judgments passed by Single Bench in Hina Islam (supra), Urmila Singh Vs. State of U.P. and 3 others, Civil Misc. Review Application No.490 of 2022 as well as judgment passed by Division Bench in Tiwari Manish and others (supra), whereby no benefit was granted to any other candidate on ground that their writ petitions were either not filed or not allowed before the judgment was passed by Division Bench in Amit Shekhar Bhardwaj (supra).
17. This Court cannot take a contrary view from repeated judgments passed by Division Bench on issue. There was an argument of learned Senior Counsel also that in some of cases similar to petitioners were allowed on basis of similar orders passed by Single Bench, however, there is merit in argument of learned counsel for respondent that orders were complied with only under threat of contempt and negative parity is not a ground to allow the writ petitions.
18. In the aforesaid circumstances, since, the Division Bench in Amit Shekhar Bhardwaj (supra) has categorically held that the benefit of said judgment would be applicable to petitioners whose writ petitions were allowed before judgment was passed and there are judgments of co-ordinate Bench and Division Bench thereafter wherein relief as sought by petitioner was declined, therefore, this Court cannot take a contrary view to the said judgments.
19. At this stage, it is also relevant to take note that some of petitioners have already taken benefit of transfer policy, therefore, while rejecting the prayer of petitioners, a liberty is granted to petitioners to apply for inter-district transfer in coming academic session, if already not applied and their application will be considered in accordance with law.
20. This writ petition is accordingly, disposed of.
Order Date:- 02.02.2024
P. Pandey
[Saurabh Shyam Shamshery, J.]
