Writ Petition no. 752 (S/S) 2004 v. Joint Director of Education Department, Kumanon

Heard Sri M.C. Pant, counsel for the petitioner and learned Standing Counsel for the State/ respondents.

2. The petitioner in his writ petition has prayed to issue a writ of mandamus directing the respondents to provide quality points to the petitioner as per Rules 1983 in pursuance of advertisement dated 17.6.2002.

3. Briefly stated, the petitioner has applied for the post of Assistant Teacher (English) in L.T. Grade in Kumaon Region. 2

4. Contention of the petitioner is that he has applied for the aforesaid post in pursuance of the advertisement-dated

17.11.2003. According to the petitioner, he possesses all the requisite qualifications and is eligible to be appointed for the said post. The petitioner came to know that he has not been awarded quality point according to rules.

5. Grievance of the petitioner is that the respondents arbitrarily did not grant quality point marks of his N.C.C. ‘B’ certificate in accordance with the Rule 15 of the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 and G.O. No. 1253/70 2-97-3 (58)/79 dated

4.7.1997.

6. The N.C.C. ‘B’ certificate has not been taken into account. The petitioner, alleging the discrimination as arbitrary and violative of Article 14 and 16 of the Constitution of India.

7. The Division Bench of Hon’ble the Apex Court in the case of Dr. M.A. Haque Vs. Union of India, 1993 (2) S.C.C. Pg. 213 has held as under:- “….We are also conscious of the fact that candidates in service have a disadvantage as against the fresh candidates in the tests particularly when they face the tests after a long lapse of time. As against this, however, we cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rule and the by-passing of the Public Service Commission are permitted, it will open a back-door for illegal recruitment without limit. In fact this court has, of late, been witnessing a constant violation of the recruitment rules and a 3 scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commission. It appear that since this Court has in some case permitted regularisation of irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commission have been kept in cold storage and candidates dictated by various considerations are being recruited as matter of course……..” Rule 15. of the U.P. Subordinate Edu.(Trained Grad Grade) Service Rules , 1983 provides Procedure for direct recruitment, which reads as under:- “1. (a) The Regional Deputy Director of Education concerned shall in respect of the vacancies of both branches (Men’s and Women’s Branch) to be filled by direct recruitment, advertise the vacancies subject-wise, along with the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes/Tribes and other categories of persons in at least two leading newspapers, one having wide circulation in the region and the other in the State, and invite applications for direct recruitment in the proforma given in Appendix ‘C’. Such advertisement shall, inter alia, mentioned the pay and allowances relating the posts, minimum academic qualifications for appointment thereto and such other information as may be considered necessary. (b). The application referred to in Clause (a) shall be sent by registered post, to the Regional Deputy Director of Education within three weeks from the date of publication of 4 advertisement in the newspaper, so as to reach the office of the Regional Deputy Director of Education on or before the last date of receipt of application mentioned in the advertisement. (c). The application referred to in Clause (a) shall be accompanied by- (i) a fee of fifteen rupees in the form of Crossed Postal Order payable to the concerned Regional deputy Director of Education: Provided that such fee shall in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes be five rupees: (ii) a self-addressed envelope; and (iii) other documents as may be required. (d) No application sent in accordance with Clause (b) or (c) shall be taken into consideration.

2. The Regional Deputy Director of Education shall scrutinize the applications and shall cause the lists of candidate to be prepared of the basis of quality points specified in Appendix ‘D’. The Regional Deputy Director of Education shall place the lists along with the applications before the Selection Committee.

3. There shall be a Selection Committee for selection of candidates for appointment by direct recruitment comprising: (i) Appointing Authority. (ii) The Regional Deputy Director of Education or the Regional Inspectress of Girls Schools, who is not appointing authority, (iii) Regional Assistant Director of Education (Basic). The appointing authority shall be the Chairman. 5

4. The Selection Committee shall, after considering the cases of candidates on the basis of lists referred to in sub-rule (2), prepare subject-wise lists of selected candidates for appointment in L.T. Grade in order of merit as disclosed by the quality points complied under sub-rule (2). If two or more candidates obtain equal quality points, the name of the candidate who is older in age shall be placed higher in list. The number of names in the list shall be larger (but not larger by more than twenty five percent) than the number of vacancies advertised under sub-rule (1).” Sub rule (4) of Rule 15 of U.P. Subordinate Educational (Trained Graduates Grade) Service Rules 1983 reads as under: “The selection Committee shall, after considering the cases of candidates on the basis of lists referred to in sub-rule (2), prepare subject wise lists of selected candidates for appointment in L.T,. Grade in order of merit as disclosed by the quality points complied under sub-rule (2). If two or more candidates obtained equal quality points the name of the candidate who is older in age shall be placed higher in list. The number of names in the list shall be larger (but no larger by more than 25 per cent) than the number of vacancies advertised under sub-rule (1).” Petitioner has submitted that according to G.O. No. 451/xV-II-37.3 (58)/79 dated 5th May 1987 which was amended on 4th July 1997 the petitioner is entitled to get 10 marks for N.C.C. ‘B’ certificate. In view of above the respondents are directed to consider the claim of the petitioner and pass appropriate orders in accordance with law for the post of Assistant Teacher L.T. 6 Grade, if otherwise he fulfills necessary qualifications in pursuance of the advertisement dated 17.11.2003. Accordingly, writ petition is allowed. No order as to costs. (Rajesh Tandon, J.)

31.3. 2006 *Dhyani