Uttarakhand High Court
CLCON/609/2017 on 10 March, 2021
CLCON No. 609 of 2017
Hon'ble Sharad Kumar Sharma, J.
Mr. Rakesh Thapliyal, Senior Advocate
assisted by Mr. Mukesh Kapurwan, Advocate for the
applicants.
Mr. M.C. Pandey, Addl. Advocate
General assisted by Mr. Ajay Singh Bisht, Addl.
C.S.C. for the State of Uttarakhand.
In this Contempt Petition, on number of
occasions, the arguments have been heard and the
pleadings have been exchanged.
Today, during the course of argument, the
learned Senior Counsel, Mr. Rakesh Thapliyal, had
refuted the contentions pleaded by the respondents in
their respective affidavits, on the pretext that after the
judgment being rendered by this Court, when the
same was not being complied with and the Contempt
Petition was filed, and the respondents have taken a
stand that there are no OBC vacancies available with
them, which could be filled as per process, rather they
are in excess appointment to the post available.
Mr. Rakesh Thapliyal, the learned Senior
Counsel, on the contrary, had submitted that in
pursuance to the advertisements which had been
issued on number of occasions, which was based
upon the communication/directions made by the
Secretary, Education on 09.11.2020, by virtue of his
letter No. 1227, it had been the basis for issuing the
direction to the Director, Education, for advertising
the posts in various districts of the State, for example,
Tehri Garhwal, Pithoragarh, Rudrapayag, Chamoli,
Almora and Bageshwar, henceforth.
Invariably, in all these advertisements, the
communication of the Secretary dated 09.11.2020, is
the foundation of its issuance and the break-up of the
post, which has been provided therein, it doth reflect
that the vacancies for OBC candidates, have also been
classified and advertised to be appointed in pursuance
to the said advertisement. In fact, by virtue of this
limb of argument of Mr. Rakesh Thapliyal, learned
Senior Counsel for the applicant, he wanted to submit
that the defence taken by the Secretary, as well as, the
Director, that they are not in a position to comply the
order on the pretext that OBC vacancies are not
available with them, is absolutely a farce reason,
which has been given by them.
He further submits that if the judgment of
the learned Single Judge, as well as that of the
judgment of the Division Bench; are read in harmony
with para 26 of the judgment of the Hon'ble Apex
Court, which has dealt with the aspect of continuance
and eligibility of the Shiksha Mitra and Shiksha
Acharya, was exclusively confined to the exception
which had been carved out to only those Shiksha
Acharyas or Siksha Mitra, who were qualified to be
appointed as an Assistant Teacher, meaning thereby,
they were having their TET certificates. His
argument is that Shiksha Acharya or Shiksha Mitra,
who have been permitted to continue, are simplicitor
graduates, and they are not holding the TET and,
hence, their continuance and taking their continuance,
as to be a pretext of non availability of the vacancies,
is yet again a misnomer stand taken by the
respondents, because the interpretation of the
judgment would be that those Shiksha Mitra or
Shiksha Acharya, who were not qualified, the posts
which are being held by them would be treated to be
vacant and available to be filled in from the open
class category of candidates, i.e. OBC, SC & ST etc.
Since the advertisements were based on
the communication which was made by the Secretary,
by virtue of the letter No. 1229, dated 9th November,
2020, is rather the foundation and it goes without
saying that the directions issued by the Secretary to
fill in the vacancy must have entailed the prior
exercise to determine the vacancies available to be
filled in pursuance to his directions. The said break-
up is not available on record as on date.
In order to complete the said instructions,
the learned Addl. Advocate General prays for and is
granted time till 16th March, 2021, to complete his
instructions, and make his submission further.
Put up this Contempt Petition on 16th
March, 2021.
(Sharad Kumar Sharma, J.)
Dated 10.03.2021
Shiv
