Court No. - 30
Case :- WRIT - A No. - 27373 of 2015 Petitioner :- Dhirendra Pratap Singh And 4 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Durga Tiwari Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Ms. Durga Tiwari, learned counsel for the petitioners as well as Sri Harish Srivastava, learned Standing Counsel appearing for the respondents and have perused the record.
Present petition has been filed seeking a writ of mandamus directing the respondent no. 4 to issue an appointment letter in pursuance of the counselling dated 9.1.2013, 11.7.2014, 25.7.2014 for the subject of 'physical education' in pursuant to the advertisement issued on 26.9.2012, 3.10.2012 and 5.10.2012. A further prayer has been made to direct the respondent no. 3 to decide the representation of the petitioners.
Vide order dated 13.5.2015 learned Standing Counsel was granted time to file counter affidavit but till date no counter affidavit has been filed. However, both the parties agree that the controversy involved in the present writ petition is fully covered by a decision of this Court dated 5.3.2018 passed in Writ-A No. 44515 of 2016 (Sagar Kumar Siddharth vs. State of UP and others).
The said judgement dated 5.3.2018 is quoted hereinunder:-
"This petition is filed for a direction upon the respondents to declare the result of counselling dated 21.1.2013, 23.1.2013, 9.1.2013, 1.2.2013 and 23.1.2013 for the post of Assistant Teacher L.T. Grade in Physical Education, pursuant to advertisements dated 26.9.2012, 3.10.2012 and 5.10.2012, issued by the respondent nos. 4 to 9. It transpires that the posts of Assistant Teachers in different subjects were advertised by the Regional Joint Director of Education in different regions of the State on 29.9.2012 etc. The advertisement has been brought on record as per which in Chitrakoot Region, Banda, 14 posts meant for Physical Education were advertised. The qualification was prescribed in the advertisement for the posts as graduate with diploma in Physical Education. Petitioner contends that he possesses the requisite qualification and had applied pursuant to advertisement in Banda region and also in other regions namely Jhansi region and Kanpur region. It appears that selection process was carried further by the respondents and various appointment orders were also issued pursuant to it. However, all the posts could not be filled on account of filing of Writ Petition No. 66760 of 2012, as well as interim orders passed therein. This writ Petition was ultimately allowed on 11.11.2013 by observing that appointments were made contrary to the advertisement and the rules, by permitting D.P. Ed. qualification also.
Recruitment itself was to be made in accordance with 'Uttar Pradesh Subordinate Educational (Trained Graduate Grade) Service Rules, 1983'. The qualification required under the Rules for the post read as Under:-
"6 Assistant Master/ Assistant Mistress (Physical Education) Bachelor's Degree from a recognised University or a degree recognized by the Government as equivalent thereto and Diploma in Physical Education".
The qualification specified in the advertisement was as per the rules. However, appointments were offered to candidates possessing Teaching Training Qualification i.e. D.P. Ed, which was contrary to the rules and advertisement, and was thus quashed.
The matter, thereafter, was carried in appeal being Special Appeal Defective No. 1275 of 2013. It was contended that selected persons were not impleaded and that the qualification of B.P.Ed. was in accordance with the NCTE Regulation, and to that extent the qualification specified in the rules were inconsistent with the NCTE Regulation, and the NCTE Regulations would prevail. The appeal was allowed and the matter was remanded to the learned Single Judge for a fresh consideration of cause. It appears that the writ petition, consequent upon remand, has been dismissed on 1.8.2016. Specific assertion made in para-23 of the writ petition, in that regard, has not been disputed in the counter affidavit. Petitioner, therefore, contends that once the cloud on the selection process stood erased on account of dismissal of the writ petition itself, there was no legal impediment in proceeding further pursuant to the advertisement. Contention is that the result of counselling in case of the petitioner be also directed to be declared.
In the counter affidavit filed aforesaid facts are not disputed. It is, however, contended that after the recruitment exercise initiated in the year 2012, a fresh advertisement was issued in the year 2014, which was subsequently shelved, and that the Government has been moved for issuing fresh advertisement. It is also contended that the relevant service Rules of 1983 have also been amended in the year 2016, vide 4th amendment. These amendments in the Rules, however, are admittedly prospective in nature.
From the facts and circumstances noticed above, this Court finds that the posts of Assistant Teachers in L.T. Grade for Physical Education has been duly advertised, and the process actually culminated in issuance of appointment letter to some of the applicants. The process, however, could not be completed on account of filing of Writ Petition No. 66760 of 2012, as well as orders passed therein. This writ petition has ultimately been dismissed. Once some of the persons pursuant to same selection process have been considered for appointment and appointment orders have, infact, been issued to them, it would not be permissible for the respondents to exclude the claim of petitioner. The fact pleaded in paragraph 31 that appointment were issued to other persons, who are still working is also not disputed in paragraph 12 of the counter affidavit.The fact that a subsequent process was initiated or that the respondents have amended the rules in the year 2016 also would not be a relevant consideration, inasmuch as such amended regulation would not apply retrospectively. Action of the respondents in issuing appointment orders to others, without considering the claim of petitioner, pursuant to same advertisement, would clearly be arbitrary.
Writ petition, therefore, succeeds and is allowed. A direction is issued to the respondents to consider the claim of petitioner for appointment, in case petitioner has been found suitable for the post in the counselling held. His claim for appointment would be considered within a period of three months from the date of presentation of certified copy of this order. No order as to costs."
In such view of the matter, no fruitful purpose would be served by granting further time to file counter affidavit or keeping this petition pending.
Consequently, the present petition is also disposed of in terms of the aforesaid judgement dated 5.3.2018 passed in Writ-A No. 44515 of 2016 (Sagar Kumar Siddharth vs. State of UP and others) as quoted above.
Order Date :- 27.3.2018 Abhishek