Court No. - 33
Case :- WRIT - A No. - 32700 of 2016 Petitioner :- Deepti Chauhan Respondent :- State Of U.P.Thru.Prin.Secy.And 3 Others Counsel for Petitioner :- Janardan Prasad Pandey Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
Hon'ble Ashwani Kumar Mishra,J.
Petitioner applied for appointment to the post of Assistant Teacher in Science/Math in senior primary school run by the Basic Shiksha Parishad at Moradabad. The advertisement was issued on 11.07.2013. Petitioner apparently secured marks above the cut-off but her candidature was not considered and consequently the petitioner approached this Court by filing Writ Petition No.17745 of 2016, which came to be disposed of vide following order passed on 21.04.2016:-
"Deepti Chauhan is before this Court for direction in the nature of mandamus commanding the respondents to issue appointment letter to the petitioner on the post of Assistant Teacher (Science) in Senior Basic School run by Basic Shiksha Parishad at District Moradabad.
This much is reflected from the record in question that the petitioner applied pursuant to an advertisement dated 11th July, 2013 for appointment on the post of Assistant Teachers (Science) under general category from District Moradabad. The aforesaid selection was to be done on the basis of average quality point marks calculated on the basis of total marks obtained by the respective candidate as per his/her entire educational qualifications. According to the petitioner, her average quality point mark comes to 68.81 whereas cut off was 68.23 in four round of counselling of District Moradabad. The cut off marks of the general category candidates was 68.23 and the petitioner became eligible for the selection. Pursuant to the aforesaid 4th round of counselling the petitioner was duly selected under general category within District Moradabad and his entire relevant original document was deposited in the office of respondent no.3.
In this regard, the precise submission advanced by the learned counsel for the petitioner is that her representation dated 18.03.2016 may be directed to be decided expeditiously within the stipulated time.
Learned counsel for the respondents fairly states that in case the representation is still pending and has not been disposed of, the same shall be considered and decided expeditiously.
In view of above, without entering into the merits of the case, the writ petition is disposed of with a direction to the respondent No. 3 to decide the representation dated 18.03.2016 in accordance with law expeditiously and preferably within a period of six weeks from the date of production of a certified copy of this order.
This order has been passed in presence of Sri Shyam Krishna Gupta, learned counsel for opposite party Nos.2 and 3."
It is thereafter that petitioner's representation has been considered and rejected by the District Basic Education Officer. The order impugned records that petitioner has submitted an affidavit on 23.09.2014 stating that her candidature against the post in question be cancelled and that she would not institute any proceedings in respect of such post. This affidavit apparently was given since petitioner wanted return of her original testimonials for counselling pursuant to a different advertisement in junior basic school. Claim of petitioner for appointment accordingly has been rejected relying upon the affidavit submitted by the petitioner.
Learned counsel for the petitioner submits that petitioner was forced to submit the affidavit since she required the original testimonials elsewhere and that such affidavit ought not to be relied upon for overlooking petitioner's candidature.
Sri S. K. Gupta, learned counsel for the respondents with reference to para 9 of the counter affidavit contends that petitioner's candidature was ignored on account of her own affidavit and that entire selection process has already been concluded and selected candidates have also joined. Submission is that at this stage neither any vacancy subsists nor any of the selected candidate is a party, and therefore, no relief can be granted to the petitioner.
Learned counsel for the petitioner, in reply, places reliance upon the interim order passed in this case on 19.07.2016, which reads as under:-
"The case of the petitioner is that for appointment on the post of Assistant Teacher (Science) in Senior Basic Schools run under the Basic Shiksha Parishad in District Moradabad, the petitioner had applied pursuant to an advertisement dated 11th July, 2013. The quality point marks secured by the petitioner as per the calculation method, were 68.81, which were higher than the cut off merit of 68.23, therefore, the petitioner had become eligible for selection/appointment.
It is the case of the petitioner that pursuant to fourth round of counselling, her testimonials were got deposited in the office of the Basic Shiksha Adhikari, Moradabad but, thereafter, on account of some litigation, the appointment letter was not issued and in the meantime, the petitioner got selected for appointment as Trainee Teacher in the Junior Basic School and, accordingly, in order to appear for counselling in respect of the said recruitment process, the petitioner had to seek return of her testimonials submitted by her with the third respondent in reference to appointment on the post of Assistant Teacher (Science) in Senior Basic Schools. It has been submitted that at the time of return of the testimonials the petitioner was coerced by the third respondent to submit an affidavit for return of the testimonials and in that affidavit, it was obtained from the petitioner that she would not stake her claim for appointment on the post of Assistant Teacher in the Senior Basic Schools and that her candidature may be treated as cancelled. It has been submitted that such affidavit was obtained by coercion and it was not a voluntary act on the part of the petitioner and, till date, the posts are lying vacant and, therefore, the petitioner, who was earlier selected, be given appointment on the said post.
The matter requires consideration.
Learned Standing Counsel has accepted notice on behalf of respondents 1 and 4 and Sri Shyam Krishna Gupta has accepted notice on behalf of respondents 2 and 3. They pray for and are allowed three weeks time to file counter-affidavit. Two weeks, thereafter, shall be for the petitioner to file rejoinder-affidavit.
List this petition on 06th September, 2016.
It is provided that in the meantime if any appointment is made on the post of Assistant Teacher in Senior Basic School, Moradabad for which the petitioner had been selected earlier, such appointment shall be subject to the decision of this petition."
Reliance is also placed upon an order passed by this Court in Service Single No.6110 of 2015 in which this Court in similar circumstances passed following order:-
"Heard learned counsel for the petitioner, learned Additional Chief Standing Counsel and Shri Ghaus Beg, learned counsel for the opposite parties no. 2 and 3.
The petitioner herein submitted the original testimonials while applying for appointment to the post of Assistant Teacher in Senior Basic School. Thereafter, the post of Assistant Teacher in Primary School was advertised wherein also the condition of submission of original testimonials existed.
In these compelling circumstances when the petitioner approached the concerned authority for returning of the original testimonials deposited in respect to earlier advertisement pertaining to Senior Basic School, he was required to submit an affidavit that he will not seek appointment against the post of Assistant Teacher in Senior Basic School and then the original testimonials were returned.
The contention of the counsel for the petitioner is that in such an arbitrary manner, the petitioner is being deprived of his right of consideration for appointment on the post of Assistant Teacher in the Senior Basis School based on the affidavit submitted by the petitioner.
Considering the facts of the case, this Court is of the view that a right of consideration for employment is a fundamental right under Article 16 of the Constitution of India. The same can not be denied based on the alleged affidavit submitted by the petitioner under compelling circumstances, on the demand of the opposite parties which in the first place was quite objectionable and illegal.
In these circumstances, it is provided that any such affidavit or application submitted by the petitioner, shall not be taken into cognizance, if the petitioner is otherwise eligible and entitled to be considered for appointment to the post of Assistant Teacher in Senior Basic School in pursuance to the advertisement issued in this regard.
At best the opposite parties can demand the petitioner to produce the original testimonials for verification at a later stage after submission of duly attested photocopies of the said testimonials.
With the aforesaid observations, the writ petition is disposed of."
From the materials placed on record it appears that the recruitment process was initiated in the year 2013 and the process itself was concluded towards the end of year 2014. Respondents' averment that all selected candidates have joined is not shown to be factually incorrect. The selected candidates otherwise are not a party in the present petition. In such circumstances, no relief can be granted to the petitioner. So far as petitioner's plea about submission of affidavit by way of coercion is concerned it is apparent that petitioner had secured her selection on the strength of her merit both against the present advertisement as also against the advertisement issued for appointment to the post of Assistant Teacher in junior basic school. There apparently was no reason as to why petitioner would withdraw her candidature unless submission of such affidavit was made mandatory for return of the documents. The argument advanced on behalf of the petitioner that affidavit ought not to be construed against the petitioner appears to have substance. Petitioner apparently had applied and secured marks above the cut-off.
In view of the facts as have been brought on record it would be appropriate to dispose of this petition with direction upon the District Basic Education Officer, Moradabad to accord consideration to petitioner's claim for appointment in the event any vacancy against the advertisement in question still remains available in the district concerned. In case such a vacancy exists claim of petitioner would not be ignored merely on account of the affidavit submitted by the petitioner on 23.09.2014. Such consideration would be made within a period of three months from the date of presentation of a copy of this order. Liberty stands reserved to the petitioner to inform the authorities about existence of any vacancy against the advertisement in question alongwith this order. Order impugned 18.05.2016 is, accordingly, modified.
Writ petition stands disposed of.
Order Date :- 28.7.2021 Ashok Kr.