Heard.
As informed by the learned counsel for the petitioner this case is similar to Writ Petition bearing No. 12841 (S/S) of 2020; Nripendra Pratap Singh Vs. State of U.P. and Ors. which has been finally disposed of in terms of the order dated 26.08.2020 passed by the Supreme Court in the following terms:-
"Heard.
This writ petition was filed by the petitioner being aggrieved by the fact that during pendency of the S.L.P./Civil Appeal before the Supreme Court wherein his right to continue in service and to be regularized were pending, a panel of selected candidates had been sent by the Commission for appointment on the post on which the petitioner was working in the college in question. The Supreme Court had passed an interim order based on which the learned counsel for the petitioner contended that if he is ousted from service and the selected person joins on his post, then his right before the Supreme Court will be prejudiced. In view of this an interim order was passed by this Court on 7.8.2020 as under :
"Heard Shri Sharad Pathak along with Shri Pawan Kumar Pandey, learned counsel for petitioner, learned counsel for State and Shri R. K. Singh Suryavanshi, learned counsel for respondent no. 3.
Learned counsel for petitioner invited the attention of this Court to an order of the Hon'ble Supreme Court dated 28.02.2020 to contend that a Division Bench of this Court had quashed the judgment of Single Judge in Sanjay Singh & Others vs State of UP & others with regard to entitlement of ad-hoc or officiating appointees to continue in service and receive salary, against which two special leave petitions were filed one bearing no. 8300 and the other bearing no. 2827 of 2017 in re: IA No.166261 of 2019 and that the petitioner is appellant no. 4 in civil appeal no. 2827 of 2017, wherein, the aforesaid order dated 28.02.2020 has been passed and the Hon'ble Supreme Court is exploring the possibility of allowing the petitioner and similar situated teachers to undergo a process of selection but without competing with the open market candidates so that they are not thrown out from the service, although in the same vein, it has also been said by the Hon'ble Supreme Court, that the petitioners cannot seek regularization. Therefore in this view of the matter as a candidate selected from commission has been sent for joining in place of the petitioner, this appeal before the Hon'ble Supreme Court would be frustrated, hence, he seeks a protection by means of this writ petition.
It has further been submitted that the petitioner is entitled for the parity of the interim order dated 28.07.2020 passed in Writ Petition No.11788 (S/S) of 2020.
Shri R.K. Singh Suryavanshi, learned counsel for Service Selection Board has opposed the prayer of interim relief and grant of parity of order of this Court dated 28.07.2020 passed in Writ Petition No.11788 (S/S) of 2020 by placing the judgement of the Supreme Court dated 08.07.2019 in Civil Appeal No. 5265 of 2019 in re: Raman Singh v. The District Inspector of Schools, Jalaun at Orai & Ors and the judgement dated 29.05.2019 passed by this Court in Writ Petition No.7940 (S/S) of 2019.
Learned counsel for the petitioner has drawn the attention of this Court towards the order passed by the Supreme Court dated 28.02.2020 in SLP No.2644 of 2020, which is quoted hereinbelow :-
"Even though the impugned order substantively deals with the legal principle, we are only making an endeavour to sort out the mess created over a period of time. We have put to learned senior counsel for the appellants that merely by reason of the fact that a number of appellants may be working, but without the process through the Board, cannot entitle them for regularization. We are categoric in our view. However, we would also not like a situation to develop where the persons who have worked for many years are thrown out of the job, even though the aforesaid position is a part of avowed thought process. We have put to learned counsel for the parties that a possible solution may be that all the appellants and similarly situated persons go through a process carried out by the Board not competing with fresh candidates and such those person who make a benchmark, can be permanently absorbed. That, we feel, is the maximum extent we are willing to go.
Learned counsel for the State-respondent will take instructions in this behalf.
In order to facilitate a resolution, we call upon the Principal Secretary (Education) to remain present in Court to assist us in the matter.
We also deem it appropriate to implead the U.P. Secondary Education Service Selection Board as a respondent-party in the present proceedings and issue notice to the Board so that the Secretary of the Board is also present on the next date."
On being confronted with the order of the Hon'ble Supreme Court Shri R. K. Singh Suryawanshi could not deny that such an order is operating as of now.
This court is conscious of the fact that ordinarily it does not interfere in such matters whether of ad-hoc or officiating teachers, but the reason this Court is interfering in this case is the order dated 28.02.2020 passed in the aforesaid civil appeal by the Hon'ble Supreme Court, as, otherwise, if the petitioner is ousted, then great prejudice would be caused to him.
Issue notice to respondents no. 5 and 6 returnable at an early date.
Connect and list along with writ petition no. 8537 (SS) of 2005.
Subject to further orders being passed in the aforesaid civil appeal pending before the Hon'ble Supreme Court it is provided that petitioner shall be allowed to continue on the post on which he is working on the some terms on which he is working at present. However, if the candidate selected by the commission is to join on some other post then he can join or he can be adjusted elsewhere in some other college as per the discretion of the concerned authorities as per law.
Learned counsel for respondents prays for and is allowed four weeks time to file counter affidavit.
Thereafter, rejoinder affidavit shall be filed within two weeks.
List thereafter.
Shri Sarvesh Kumar, learned Advocate has appeared for Opposite Party No.6. He is directed to file Vakalatnama in the Registry today itself."
Subsequently the Supreme Court on 26.8.2020 has decided the Civil No. 8300 of 2016 and other connected matters in the following terms :
"1. The present dispute is a reflection of the mess in the education system where starting from the primary level to the highest level adhocism seems to prevail in the appointment of teachers and lecturers in turn having consequences for the students who need to benefit from the best education process. That has not been so.
2. It is in the aforesaid circumstances that the impugned judgment (Writ Petition No.655 of 2014 Abhishek Tripathi vs. State of U.P. through Secy.Secondary Education, Lko. & Ors. decided on 17th December, 2015) has been rendered to bring an end to the adhocism which was prevailing. The impugned judgment recognizes the mess which is created to which all are contributory but ultimately deemed it proper to decline relief.
3. We have been hearing this matter from time to time to find the solution. We may say at the inception that we are not in disagreement with what has been set out in the impugned judgment but then this Court has the benefit of Article 142 of the Constitution of India to do complete justice between the parties and we are taking recourse to this to deal with the mess which is before us i.e. a complete adhocism in the working of the education system whereby TGTs and lecturers have been working for years and decades without a regularization. We do find that everyone is to blame for this scenario as what was an adhoc arrangement never fructified in the proper regularization or by holding examination in which recruitment could take place. If the recruitments did take place, that was periodic in terms of examination held after long period of time.
4. We have heard learned counsel for the parties at length earlier and even today to find a solution to the problem. Our attention has also been drawn to the last additional affidavit filed by the State of Uttar Pradesh and what emerges is that the State proposes to hold a competitive examination for recruitment of 15000 TGTs and lecturers both (if there are more existing vacancies reported as per rules, the Commission should take care to advertise even for those vacancies). Insofar as the parties before us are concerned, whether as appellants/petitioners or as interventionist, on verification it was found that there are 659 persons before this Court and out of them information regarding 112 persons could not be traced out in absence of details. The details are available only for 547 adhoc teachers (in view of appellants disputing, this is subject to further verification) being 84 lecturers and 463 TGT grade teachers as set out in paragraph 11 of this affidavit.
5. We did debate the issue whether a separate examination should be held for such persons or whether they should participate in the prospective examination process. Normally the difficulty arises on account of the age bar but i.e. undisputedly not a factor in the present case as everybody will be permitted to appear. At times separate examinations have been held in different situations but in the present case we are not concerned with persons who are working at a trade and have been away from the academics since the very nature of job of teaching envisages a continued academic pursuit and improving your skills in teaching.
6. A concern has been expressed by learned counsel for the appellants and applicants that there may be persons who may have rendered long period of service as adhoc and if they really participate in the examination and are even successful, they may not get benefit of the past service, specially retirement benefits, as some of them may be near the age of retirement than the fresh candidates.
7. It is in the conspectus of all the aforesaid circumstances that we consider appropriate to issue the following directions in exercise of power under Article 142 of the Constitution of India:
(a) All the petitioners/appellants and applicants before us and for that matter all persons eligible under the advertisement will be permitted to appear for one single examination.
(b) Such of the persons who are successful, would have to go through a process of interview insofar as the post of lecturers is concerned, as we are informed that the post of TGTs the interviews have been dispensed with.
(c) We are inclined to give some weightage to the persons who have worked as TGT and lecturers depending on the period of service rendered. It is respondent No.3-Commission which will have to tweak this aspect and work out giving some weightage to both TGT and lecturers depending on the period of service rendered. In the case of TGTs, such weightage will have to form a part of the total marks while in case of the lecturers such weightage can be given in the process of interview.
(d) The advertisement to be issued should contain the terms of these directions issued by us today.
(e) We make it clear that the decision as aforesaid will be final of the Commission and no further litigation will be entertained in respect thereof.
(f) Insofar as the verification of past service is concerned, the concerned teachers/lecturers would give the particulars and details to the Commission for obtaining such weightage and that aspect will be verified by the Commission in consultation with the State Government as we are told that it is the State Government which would have the wherewithal to do the needful. Needless to say that aspect will also be final without any further litigation being entertained in that behalf.
(g) In view of the weightage given, for the same the examination process can be completed.
(h) The other aspect is that apart from the weightage, the period which has been verified as having been spent in teaching as adhoc, would be counted for purposes of retiral benefits of the TGTs and Lecturers.
8. On having considered and on having issued the aforesaid directions, we also feel it is necessary to direct that we are not faced with such a situation in future. We would thus like to direct the State and the Commission to lay down a schedule for periodically holding examinations so that it creates employment opportunities and also the students are benefitted. We would require the Commission to not only take into consideration the existing but also future vacancies reported as per rules for purposes of holding such examinations in future. This should be strictly followed. The learned Advocate General states that this aspect is being taken care of.
9. In view of the petitioners/appellants in their own case having made the ground on the basis of Section 16-E(sub-section 11) of the Intermediate Education Act, 1971 that where teachers have been working for period against substantive vacancies temporarily, there is a provision to give benefits to them, we consider appropriate that the benefits of past service would be rendered only to such of the persons who have been appointed temporarily in accordance with the provisions of this Section. We expect the State to be fair in this matter in recognizing the various nature of vacancies which may have arisen.
10. We have also considered the prayer made in IA No.48618 of 2020 in SLP(Civil)Nos.19561-19562 of 2019. We have heard learned counsel for the parties on this aspect and have taken cognizance of the fact that there may be teachers/lecturers who are working and not paid for almost two years. The second concern is that till this examination process is completed, a prayer is made on behalf of the petitioners/appellants and the applicants that they should be permitted to continue.
11. On having examined the issue, we feel it will be appropriate to direct that the teachers/lecturers who are employed at present the TGTs and lecturers would continue to be so employed till the aforesaid process is completed and to the extent the financial benefits are given by the State Government to the institutions, against appointments made in compliance with Section 16-E (subsection 11) of the Act, the same will also be given to provide succour to the TGT/lecturers.
12. We end with the hope that we will never be faced with the aforesaid situation again and the State Government and the Commission will also make every endeavour to ensure that the order is complied in its true intent and spirit and specially the aspect of holding examinations for the future taking into consideration all current and future vacancies reported as per rules is followed in times to come. We need not emphasize that education in a very important role performed by a State apart from the area of medical assistance to citizens and thus it is necessary that the full benefit is extended to the students which can only take place if the full strength of teachers is available at the requisite time. This in turn requires compliance with the aforesaid directions for the future.
13. Since there is always hope, we hope for a better future.
14. The aforesaid exercise by the Commission in consultation with the State Government should be completed well in time to ensure that at least in the session commencing in July, 2021 all teachers up to date are in place.
15. All the appeals and special leave petitions are disposed of in terms aforesaid.
16. All pending applications also stand disposed of."
As this writ petition had been filed considering the interim orders passed in the aforesaid civil appeal, as is mentioned in the interim order passed by this Court on 7.8.2020, and as the issue herein stands concluded by the above quoted decision of the Supreme Court in the civil appeal, relief prayed for here in this writ petition cannot be considered separately and independently and whatever right the petitioner has, as he claims to be a party before the Supreme Court in the proceedings which have been decided as aforesaid, it has to be only in terms of the aforesaid judgment of the Supreme Court, and not otherwise, therefore, it is hereby directed that the concerned opposite parties shall consider as to what benefits the petitioner is entitled regarding continuance of service and payment of salary in terms of the decision of the Supreme Court aforesaid and take a decision accordingly. The writ petition stands disposed off in the aforesaid terms."
The petitioner herein seeks parity of the aforesaid judgment.
The learned counsel for the official opposite parties have no objection.
The Court has perused the records and the judgment aforesaid and finds that the aforesaid writ petition was similar to the instant writ petition, therefore, without issuing notices to the opposite party no. 5 and 6 and dispensing it, this writ petition is disposed of in terms of the judgment dated 29.09.2020 passed in Writ Petition No. 12841(S/S) of 2020.
Order Date :- 22.2.2021 Om [Rajesh Singh Chauhan, J.]