High Court
Case Details
Neutral Citation No. - 2024:AHC:118569-DB Court No. - 29 Case :- SPECIAL APPEAL No. - 342 of 2024 Appellant :- Mayank Rastogi and another Respondent :- State of U.P. and Another Counsel for Appellant :- O.P.S. Rathore,Sr. Advocate,Taniya Pandey Counsel for Respondent :- Archana Singh,C.S.C. Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Prashant Kumar,J.
Legal Reasoning
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri O.P.S. Rathore and Ms. Taniya Pandey, learned counsel for the appellants; Sri Fuzail Ahmad Ansari, learned Standing Counsel for the State respondent no.1 and Mrs. Archana Singh, learned counsel for the respondent no.2 (Uttar Pradesh Board of Basic Education, Prayagraj through its Secretary). 2. The present intra court appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 assailing the validity of the judgement and order dated 19.01.2024 passed by learned Single Judge in Writ A No.12805 of 2023 (Mayank Rastogi and 2 others vs. State of UP & another) alongwith Writ A No.14017 of 2023 (Yogendra Pratap Singh and 79 others vs. State of UP and another). 3. The entire controversy revolves around the claim of candidates belonging to open general category claiming benefit, which has been accorded to only meritorious reserved candidate, pursuant to selection held for the appointment of Assistant Teachers in State of Uttar Pradesh in the year 2018, without passing any benefit to the members of open general category having higher merit. 4. Brief facts, which are emerging from the record, are that the selection/appointment and services of teachers in Basic Schools run and managed by the U.P. Board of Basic Education, Prayagraj (in short, the Board) are governed by U.P. Basic Education Act, 1972 and U.P. Basic Education (Teachers) Service Rules, 1981, as amended from time to time. Prior to Uttar Pradesh Basic Education (Teachers) Service (Twentieth Amendment) Rules, 2017, the selection/appointment of Assistant Teachers was made on the basis of quality points of academic and training qualifications. On 09.11.2017, State Government notified Uttar Pradesh Basic Education (Teachers) Service (Twentieth Amendment) Rules, 2017 and incorporated written examination known as 'Assistant Teacher Recruitment Examination'. On 08.02.2018, the State Government notified Twenty-First Amendment Rules, 2018 abolishing district preference given to candidates having passed their training from the respective districts. 5. The State Government initiated process for recruitment of 68,500 Assistant Teachers and issued a Government Order on 09.08.2018 for selection and appointment in Junior Basic Schools. On the same day, another Government Order was issued for conducting the examination and the Examination Regulatory Authority, U.P. was entrusted for conducting the same. Qualifying cut off marks for General/OBC candidate was 45% while 40% was fixed for Scheduled Caste/Scheduled Tribe candidates. On 17.01.2018, the State Government notified schedule for conducting the examination, pursuant to which Examination Regulatory Authority had issued notification inviting online applications. The examination was held on 27.05.2018 and the result of candidates was declared on 13.8.2018, wherein total 41,556 candidates were declared successful against vacancy of 68,500. 6. Thereafter the State Government had issued another Government Order on 18.8.2018 for filling up the vacancies. On 19.8.2018, the Board invited online application with district preference against 75 districts from total 41,556 successful candidates and vacancies were reduced from 68,500 to 41,556. The vacancies were notified separately in 75 districts. The reservation applicable as per Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 was applied in the first phase of counselling held on 01.09.2018 and 02.9.2018 and total 35,420 candidates were offered first phase of appointment in view of availability of vacancies in respect of categories in the concerned district. These candidates were offered appointment, but out of 41,556 successful candidates, 6,136 candidates, mostly from unreserved category, were not offered appointment due to non-availability of vacancies in respective category in concerned district. 7. Some of the candidates of reserved categories i.e. other Backward Classes, Scheduled Caste and Scheduled Tribes, having obtained higher marks in the merit list, were placed in the General Category and were offered appointment in the Open General Category. The second round of counselling of 6,136 candidates took place on 03.9.2018 and 04.9.2018, and they were appointed in their respective categories in the available vacancies. Out of total 68,500 vacancies, against which examination was conducted, these candidates though lower in merit, but were allotted district of their first preference without considering the comparative merit vis-a-vis their preference. Pursuant to the placement/posting, all the selected candidates joined at their respective place of posting. 8. Record further reflects that in the previous litigation, the dispute arose on two grounds, firstly, the Board was not justified in reducing number of vacancies notified as 68,500 to 41,556, and, secondly, the counselling, which had taken place in two parts and candidates, who were higher in merit in open general category, were denied preference of their districts as they were allotted district in the first round of counselling held for 35,420 candidates, while the second counselling, which took place for 6,136 candidates, remaining vacancies out of 68,500 were released and they were accommodated against those vacancies as per their preference, which resulted in discrimination as candidates, lower in merit, were placed better than the candidates, who were higher in merit, both in the reserve category as well as in the open general category. 9. In earlier round of litigation the issue under consideration before the writ court was with respect to allocation of the districts to the candidates, who were selected as Assistant Teachers. The advertisement was issued way back in the year 2018 and the selection process was completed. The candidates, who were selected, had joined at their respective places of posting in the year 2018 itself. Finally, learned Single Judge vide judgement and order dated 29.08.2019 had dismissed Writ A No.19737 of 2018 alongwith connected writ petitions. A batch of intra-court appeals led by Special Appeal No.274 of 2020 (Amit Shekhar Bhardwaj vs. State of UP and 2 others) were filed assailing the aforesaid judgment and order dated 29.08.2019 and a Division Bench of this Court had passed a consenting order on 14.09.2021 reported in 2021:AHC:103863- DB.
Decision
10. A perusal of the aforesaid order reveals that the relief was accorded by the Division Bench on the basis of consent between the parties as Special Appeal Defective No.865 of 2020 filed by the Board was also disposed of by the consenting order and accordingly, a direction was issued that the same shall not be treated as a precedence for the reason that the Court had not given any judgement 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. In response thereof, the petitioners-appellants had approached to the Secretary of the Board for redressal of their grievance by filing a detailed representation in the month of February, 2023 on the ground that they were having higher quality point marks than the candidates appointed in a district where the petitioners' claim was to be considered and ignoring the preference of the petitioners being first, second and third preference, they have been given the appointment in a district where their preference was at 7th, 10th etc. Learned Single Judge had dismissed the writ petition on 19.1.2024, relying upon the judgement passed by the Division Bench in bunch of cases led by Amit Shekhar Bhardwaj's (supra) and the same is challenged in the instant appeal. 11. Sri Ashok Khare, learned Senior Advocate appearing for the appellants submits that learned Single Judge has erred in law while passing the order impugned, wherein he has interpreted the judgement in Amit Shekhar Bhardwaj's case (supra) on a limited ground and opined that the claim of the petitioners was only limited to 41,556 vacancies alone. He failed to appreciate that the selection process was commenced to fill up 68,500 posts of Assistant Teachers and the appointments were accorded only to 41,556 vacancies. Learned Single Judge has utterly failed to take note of the fact that the proceedings for selection of Assistant Teachers were initiated for 68,500 posts and learned Single Judge has restricted it to only 41556 vacancies and at no point of time, the vacancies were reduced. Moreover, while passing the order dated 14.09.2021 the Division Bench had held that 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. 12. Sri Ashok Khare, learned Senior Advocate further submits that in view of the leave accorded by the Division Bench as the said order has not been questioned in the higher Court and the same has attained finality. Once the Division Bench has accorded leave to the appellants to fill up the option of three districts, then the same could not be restricted to consider their choice of posting subject to availability of the vacancies in the district concerned. Admittedly, the appellants had given option and there were existing vacancies and therefore, in the light of the judgement passed in Amit Shekhar Bhardwaj's case (supra), it was incumbent upon the Board to consider the claim of the petitioners for according posting strictly as per mandate of the Division Bench in Amit Shekhar Bhardwaj's case (supra). Learned Single Judge has utterly failed to appreciate that the directions issued by the Division Bench were not disturbing the illegal allotment made to persons with lower merits and there was no justifiable reason before learned Single Judge even to curtail/reduce the consideration of the petitioners/appellants only amongst vacancies available within 41556. 13. Per contra, Mrs. Archana Singh, learned counsel for the respondent Board has vehemently opposed the appeal and reiterates the Government order dated 09.08.2018, whereby the process of selection and district allocation of the candidates for 68,500 Assistant Teachers was initiated and in the said selection only 41,556 candidates were found eligible. Consequently, in response to the mandate of the Division Bench in Amit Shekhar Bhardwaj's case (supra), the Government orders dated 10.12.2021 and 17.02.2022 were issued inviting applications for online district allocation on the website of the Board. On receiving the online applications from candidates for district allocation, the Secretary of the Board had issued an Office memorandum on 08.04.2022 directing the Director, National Informatics Centre, U.P. Lucknow to undertake necessary action for district allocation and the district allocation process has been ensured. She submits and reiterates that the objection, so raised by Mr. Ashok Khare, learned Senior Advocate, is totally devoid of merit. Even at the time of allocation of the district as the recruitment was to fill up 68,500 posts and same has been taken into consideration. At no point of time, the allotment took place only considering the posts of 41,556. In support of her submission, she has placed reliance on categorical averments made in paragraph-7 of the counter affidavit. For ready reference the same is reproduced herein below:- "7. That it is relevant to state that the procedure for district allocation was made available to the National Informatics Centre, Uttar Pradesh, Lucknow vide Office Memorandum No.B0SH0P0/675-79/2022-23 dated April 08, 2022 issued by the Secretary, U.P. Basic Education Board in accordance to which the district allocation process has been conducted." 14. Even on merits, Mrs. Archana Singh submits that the first appellant, who belongs to unreserved category having registration No.2200004594, has given preference to option for Districts Meerut, Hapur and Muazffarnagar. Since in Districts Meerut, Hapur and Muzaffarnagar in unreserved category, there was no vacant post, hence his allotment has not been done to the desired district. She also submits that the second appellant namely Saurabh Mishra, who also belongs to unreserved category having registration No.3100000352, had given preference to option for Districts Raebareli, Lucknow and Barabanki. Since in district Raebareli and Lucknow there was no post vacant and for district Barabanki the second appellant had scored 66.69 quality point marks, which is less than the quality points secured by the last candidate of his category, who was allotted district Barabanki i.e. 68.88 as per the availability of vacancy in district Barabanki, and therefore, the placement could not be accorded to him. She has lastly placed reliance on the judgement and order dated 08.03.2022 passed in Special Appeal Defective No.1048 of 2021 (O & M) (Tiwari Manish and others vs. State of UP and others) connected with Special Appeal Defective No.92 of 2022 (O & M) (Anupam Kumar Mishra and others vs. State of UP and others), wherein the Division Bench had dismissed both the appeals on account of delay as well as on merits. For ready reference the relevant paras 6 and 7 are reproduced herein below:- "6. The issue under consideration before the writ Court was with respect to allocation of the Districts to the candidates, who were selected as Assistant Teachers. The advertisement was issued way back in the year 2018 and the selection process was completed. The candidates, who were selected, had joined at their respective places of posting in the year 2018 itself. In appeal filed by writ petitioners, a Division Bench of this court on September 14, 2021 passed a consenting order, the operative part whereof reads as under: "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." 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." 15. Heard rival submissions and perused the record. 16. We find that before the Division Bench in Amit Shekhar Bhardwaj's case (supra), the judgment and order dated 29.08.2019 rendered by learned Single judge in Writ A No.19737 of 2018 alognwith connected petitions as well as order dated 13.5.2020 deciding review/modification application, were challenged on the ground, firstly that the Board was not justified in reducing the number of vacancies notified as 68,500 to 41,556 and secondly, the counselling, which had taken place in two parts and candidates, who were higher in merit in open general category, were denied preference of their district as they were allotted district in the first round of counseling held for 35,420 candidates while the second counselling, which took place for 6,136 candidates, remaining vacancies out of 68,500 was released and they were accommodated against those vacancies as per their preference, which resulted in discrimination as candidates lower in merit were placed better than the candidates, who were higher in merit,both in the reserved category as well as in the open general category. In the earlier litigation, the appellants had set up their case before the Division Bench that once there was a single selection process initiated by the State Government, then the Board was not justified in reducing the number of vacancies from 68,500 to 41,556 and thereby allotting district as per the preference of the candidates placed higher in merits on the available seat, which has been reduced while the candidates being lower in merit were given the district of their preference in the second counselling. Finally, with the consent of parties the Division Bench had disposed of the appeals on 14.09.2021 only to balance the equity with the meritorious reserved candidates, the operative part whereof reads as under:- "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. 28. With the aforesaid, the judgment of the learned Single Judge dated 29.08.2019 is modified and the special appeals are disposed of." 17. The main ground taken in the instant appeal is that learned Single Judge had erred in law in interpreting the Division Bench judgement in Amit Shekhar Bhardwaj's case (supra) and limiting the posting subject to availability of vacancies as a claimed limit to 41,556 vacancies alone, whereas during the argument Mr. Ashok Khare, learned Senior Advocate has heavily submitted that while deciding the case of Amit Shekhar Bhardwaj (supra) the Division Bench had opined that the appellants were accorded option to fill up three districts of their choice and they would be posted in any of the district of their choice subject to availability of the vacancy in the district concerned. It cannot be accepted that on one hand, in earlier round of litigation even in the ground of appeal the main thrust was that the Board has reduced the vacancies from 68,500 to 41,556 and instead of considering the claim of the appellants for allotting district as per total 68,500 posts. Now, during the argument he has insisted that the vacancy in the district is to be considered. The said request cannot be acceded by this court as subsequent to the recruitment in question, another recruitment also took place. Moreover, the Division Bench vide judgement and order dated 08.03.2022 had dismissed subsequent Special Appeal Defective No.1048 of 2021 filed by Tiwari Manish and others and rejected the claim of the appellants and while dismissing the claim of the appellants the Division Bench had taken note of the judgment in Amit Shekhar Bhardwaj's case (supra). 18. Once the controversy has already been settled by the Division Bench in Amit Shekhar Bhardwaj's case (supra) which was followed in Tiwari Manish and others's case (supra) then at this stage we are not inclined to unsettle the things, which have already been settled, as the allocation of districts to the candidates may entail some serious consequence and in response to the later advertisement, the selection process has already been concluded. Even on merits, we find that the appellants have no case. 19. The present intra court appeal stands dismissed. Order Date :- 22.7.2024 RKP