Allahabad High Court
Rajesh Kumar And 6 Others vs State Of U.P. Through Secretary, Basic ... on 1 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:78293-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Sl.No.19)
Court No. - 40
Case :- SPECIAL APPEAL No. - 405 of 2024
Appellant :- Rajesh Kumar And 6 Others
Respondent :- State Of U.P. Through Secretary, Basic Education, Government Of U.P. And 5 Others
Counsel for Appellant :- Satyendra Chandra Tripathi
Counsel for Respondent :- C.S.C.,Kushmondeya Shahi
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Satyendra Chandra Triapthi, learned counsel for the appellants/petitioners, Sri F.A. Ansari, learned Standing Counsel for the State-respondent and Sri Kushmondeya Shahi, learned counsel for respondent nos.2 and 3.
2. The present intra-court appeal is preferred assailing the validity of the judgment and order dated 22.03.2024 passed by the learned Single Judge in Writ-A No. 55443 of 2017 (Akhilesh Kumar Pathak and others vs. State of U.P. and others), wherein, the learned Single Judge, after considering the submissions, dismissed the writ petition.
3. In the said writ petition, the petitioners have sought following relief:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the letter No.??? ??? ??/16068-16157/2017-18 dated 06.11.2017 issued by respondent no.3, Secretary, Basic Shiksha Parishad U.P., so far as, it has fixed the cutoff merit of the earlier round of selection held in year 2013-14 as a minimum cutoff for counseling/selection in respect to the selection proceeding running in pursuant the advertisement dated 19.01.2017.
(ii) Issue a writ order or direction in the nature of mandamus commanding the respondents to remove the aforesaid restriction and consider the candidature of petitioners against the vacancies proposed to have filled under advertisement dated 19.01.2017 issued by respondent no.3."
4. It appears that the petitioners had applied on the post of Assistant Teachers of Junior Basic School of Basic Shiksha Parishad, Uttar Pradesh in pursuance to G.O. dated 15.10.2013, whereby, the 10,000 vacancies of Assistant Teacher were advertised vide advertisement dated 17.10.2013. In terms of the advertisement, the qualification prescribed were graduation with training qualification of BTC training, two years B.T.C. Training (Urdu) and Special B.T.C. training along with certificate of Teachers Eligibility Test (in short 'T.E.T.'). Admittedly the petitioners were not having the B.T.C. but they possess the qualification of Diploma in Education (D.Ed.-Special Education), which was not prescribed as a qualification in the said advertisement. It further reveals that the petitioners alongwith other similarly situated candidates, those were possessing the Diploma in Education (D.Ed.-Special Education), had preferred various writ petitions. The Learned Single Judge of this Court had rejected the said claim, which was subject matter of challenge before the Division Bench. The Co-ordinate Bench had permitted the petitioners and other similarly situated candidates to participate in the selection process. Aggrieved with the said permission, the State Government had preferred Special Leave to Appeal before the Hon'ble Apex Court. Initially the Apex Court while according interim order in favour of the State had directed that 50% posts of Assistant Teachers to be filled up by the State by leave of the Court. Eventually the said Special Leave to Appeal was dismissed by the Apex Court vide order dated 13.01.2015.
5. Once the petitioners and similarly situated other candidates were not considered for appointment, they had preferred contempt proceeding. Finally, the Secretary, Basic Shiksha Parishad, Uttar Pradesh had issued a notification dated 19.01.2017, whereby, the candidates having Diploma in Education (D.Ed.-Special Education), who had already participated in pursuance to the advertisement dated 17.10.2013, were asked to submit their application on or before 31.01.2017. In this backdrop, the case was set up by the petitioners in the second round of litigation that subsequent permission was required to be treated as fresh recruitment, therefore, the respondent authority must re-determine the merit, whereas, the Secretary, Basic Shiksha Parishad had taken a decision on 06.11.2017, whereby, all the Basic Shiksha Adhikari (BSA) were directed that the initial cut off merit qua to their respective category would remain same and all those candidates, who had applied in pursuance to the notification dated 19.01.2017 and in case their score are above the cut off merit list in their respective categories, will be considered. It was pressed before learned Single Judge that once the Secretary, Basic Shiksha Parishad had issued a notification dated 19.01.2017 and in case petitioners claim that Diploma in Education (D.Ed.-Special Education) was considered at par with other requisite qualification, the merit list was bound to be dropped and the petitioners, despite being quite lower from the cut off merit in their respective category, might have been included in their merit list, therefore, a legitimate right for consideration has been denied. The said claim has been negated by Learned Single Judge, which is impugned in the present Special Appeal. The relevant paragraphs 12, 13, 15, 16 and 17 of the judgement and order impugned dated 22.03.2024 are reproduced herein under:-
"12. As facts referred above, petitioners candidature was not considered at the initial stage since Diploma in Education (D.Ed.-Special Education) was not considered as an eligibility in appointment on post of Assistant Teacher and it was directed to be considered by the judgment passed by Supreme Court and accordingly, notification was issued by concerned respondent and applications were invited from such candidates.
13. I have carefully perused the material on record, however, I am not convinced that there was any direction to redetermined the merit list. A cut off of merit list was already determined at earlier staged and meritorious candidates who were denied consideration for appointment only on ground that they possessed Diploma in Education (D.Ed.-Special Education) were granted benefit of reconsideration.
14. It is also not under dispute that all the petitioners are got marks on very lower side and only on hypothetical argument and assumption, merit cannot be reduced. The cut off of merit list cannot be reduced to accommodate petitioners.
15. I have also carefully perused notification and impugned communication and there is no legal provision that the notification could be construed as a fresh recruitment. The contents thereof specifically states that it was in continuation of earlier process and candidates who possessed Diploma in Education (D.Ed.-Special Education) were asked to apply to participate in recruitment process.
16. The impugned communication prescribed a procedure and without interfering with existing cut off merit it was directed that claim of petitioners would be considered in accordance with existing merit list.
17. There is no legal basis in the argument of counsel for petitioners that in pursuance of notification a fresh exercise to be undertaken to redetermine the cut off merit as well as it does not purport of orders passed by Supreme Court also, therefore, all argument raised by counsel for petitioners are not legally sustainable and accordingly rejected and I do not find any reason to interfere with impugned communication, therefore, the bunch of writ petitions has no force and accordingly, all writ petitions are dismissed."
(Emphasis supplied)
6. Learned counsel for the appellants-petitioners vehemently submitted that once the Secretary, Basic Shiksha Parishad Uttar Pradesh had issued notification dated 19.01.2017, whereby, the candidates having Diploma in Education (D.Ed.-Special Education) were provided equivalence with the qualification as has been prescribed in the Advertisement dated 17.01.2013, therefore, at the initial stage due weightage could have been accorded and merit could have been lower down but no such reprieve had been accorded to the appellants-petitioners and the Learned Single Judge has erred in law while negating the claim of the petitioners. He submits that the judgement and order passed by learned Single Judge is liable to be set aside and direction be issued to the Secretary, Basic Shiksha Parishad, Uttar Pradesh to lower down the merit and accordingly accord subsequent benefits and placements.
7. Per contra, Shri K. Shahi, learned counsel for respondent nos.2 and 3 and Shri F.A. Ansari, learned Standing Counsel for the State respondents vehemently opposed the appeal and submit that all the appellants-petitioners got marks lower than the cut off merit in their respective category, which was fixed at the initial stage so the arguments advanced by learned counsel for appellants-petitioners are having no legs. Earlier the bone of contention was to accord equivalence of Diploma in Education (D.Ed.-Special Education) viz-a-viz the BTC training, two years B.T.C. Training (Urdu) and Special B.T.C. training, which was given quietus by the notification dated 19.01.2017 and approximately 160 candidates were given appointment, who were having Diploma in Education (D.Ed.-Special Education). The relief set up before this Court is superficial and no such relief was asked in the previous round of litigation. Moreover, the present matter pertains to recruitment of 10,000 Assistant Teachers of the year 2011, thereafter the Board had completed three recruitment drives i.e. 2015 Recruitment (15,000 vacancies of Assistant Teachers), 2018 Recruitment (68500 vacancies of Assistant Teachers) and 2019 Recruitment (69000 vacancies of Assistant Teachers) and accordingly their placement orders were also issued, therefore, at this belated stage the relief, as has been sought for, is totally misconceived and the Learned Single Judge has rightly negated the claim of appellants-petitioners.
8. We have carefully considered the submissions of the parties and find that initially in the first round of litigation, the petitioners and other similarly situated candidates had agitated that they were possessing the Diploma in Education (D.Ed.-Special Education) and they asked for equivalence to the other qualifications i.e. BTC training, two years B.T.C. Training (Urdu) and Special B.T.C. training. The said grievance was redressed by the Authority and equivalence was accorded to the petitioners vide notification dated 19.01.2017 issued by the Secretary, Basic Shiksha Parishad, Uttar Pradesh. The candidates, who were having the Diploma in Education (D.Ed.-Special Education) were treated at par with the other candidates.
9. The present dispute relates to lowering of the merit list, which was initially prepared and the aforementioned relief was pressed before the Learned Single Judge in second round of litigation. Subsequently, it has been brought on record that their marks were much below the last cut off merit qua their respective categories and considering the same, the Learned Single Judge has rightly observed that the notification issued on 19.01.2017 was in continuation of earlier examination process and it could not be construed as fresh recruitment process. The order of Hon'ble Supreme Court also does not indicate that merit list was to be redetermined and the same was also not the ratio of the Division Bench, which had only accorded equivalence to the candidates those were possessing the Diploma in Education (D.Ed.-Special Education), at par with qualification of B.T.C. training, two years B.T.C. Training (Urdu) and Special B.T.C. training. The demand of appellants-petitioners that the cut off merit list had to be lowered down just to accommodate the petitioners is totally misconceived. Even the candidates who were possessing the Diploma in Education (D.Ed.-Special Education) i.e. around 160 candidates, were also given appointment as they scored the above cut off marks. The contention of the appellants-petitioners are liable to be negated specifically when it was in continuation of earlier examination process and all those candidates, who possess the Diploma in Education (D.Ed.-Special Education) were asked to participate in the recruitment process. Admittedly, the chance was given but the appellants-petitioners could not cross the cut off merit, therefore, at this belated stage, as three successive recruitment processes has already been completed, no relief can be accorded to them.
10. It is not in dispute the appellants-petitioners got marks on very lower side (much below the cut off merit), the merit cannot be reduced. More-so, the notification dated 19.01.2017 could not be construed as fresh recruitment. Contrarily the notification and the communication, which is impugned in the writ petition, clearly states that it was in continuation of earlier process of recruitment. The leave was only accorded to the candidates, who possessed the Diploma in Education (D.Ed.-Special Education) and they were asked to apply and participate in the process. Therefore, the demand to redetermine the cut off merit is unsustainable, accordingly liable to be rejected.
11. Hence we are of the view that the Learned Single Judge has appreciated the records and materials, as has been placed and the writ petition has been dismissed by the learned Single Judge with cogent and justifiable reasons. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order.
12. In view of above, the special appeal sans merit and is, accordingly, dismissed.
Order Date :- 1.5.2024
Ashish Pd.
(Anish Kumar Gupta,J.) (M.C. Tripathi,J.)
