Court No. - 18
Case :- WRIT - A No. - 6457 of 2018
Petitioner :- Khushbu Shukla
Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Satyendra Chandra Tripathi
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Sateyndra Chandra Tripathi, learned counsel for the petitioner; learned Additional Chief Standing Counsel for the State respondent as well as Shri A.K. Yadav, learned counsel appearing for the second and third respondents.
With the consent of learned counsel for the parties, the writ petition is being decided without calling for counter affidavit.
The petitioner is before this Court with request to issue direction to the respondents to allow him to submit her joining on the post of Assistant Teacher in Primary School Akodha, Block Kaundhiyara, District Allahabad in pursuance of the appointment letter dated 30.08.2016 issued by the District Basic Education Officer, Allahabad against 16448 vacancies of Assistant Teachers in Junior Basic Schools run and managed by U.P. Basic Shiksha Parishad pursuant to advertisement dated 25.6.2016 made in pursuance of the Government order dated 16.6.2016.
It appears that that the petitioner was initially appointed as Shiksha Mitra on 2008. Thereafter, in pursuance of a policy of the State Government, she was absorbed as Assistant Teacher in Junior Basic School (Primary School) at District Allahabad. It has been informed that she has already fulfilled the qualification of TET and other qualifications for the post in question. It is also reflected that after her absorption and joining on the post of Assistant Teacher, another selection for the posts of Assistant Teacher was held against about 16448 vacancies. The petitioner participated in the said selection also and got selected but she could not joined on the post of Assistant Teacher in pursuance of the appointment order dated 30.08.2016 due to reason that she was already substantively appointed on the post of Assistant Teacher after her absorption and No Objection Certificate has also not been produced by her. Record in question further goes to show that litigation pertaining to absorption of Shiksha Mitra as Assistant Teachers was pending consideration before Hon'ble Supreme Court in Civil Appeal No.4347-4375 of 2014 (State of UP and others vs. Shiv Kumar Pathak and others) alongwith other connected appeals and the same has lateron been decided on 25.7.2017 and taking into consideration all these aspect, this Court in 18762/2017 (Km. Anupa Devi and others vs. State of U.P. and others) alongwith connected matters has passed detailed order on 21.09.2017, wherein the petitioners have been allowed to join as against 16448 posts of Assistant Teacher. Relevant is extracted below:-
"Moreover, the Court also finds that if a fresh recruitment is held against the said posts, then, obviously it will take time as even the advertisement has not been issued as yet, therefore, one fails to understand as to why the State Government can not consider and allow the selected petitioners to join on the vacant posts, as, it would sub-serve the common good without violating any statutory provision.
It is made clear that the joining of the petitioners shall not be treated as a precedent for other matters, as, at best the State Government can be apprehensive that others similarly situated in respect of other selections may also come forward treating it to be a precedent which is not the case. Neither any financial nor administrative prejudice is being caused to the State Government.
It is also worthwhile to mention that as per Rule 17 of the Rules, 1981 the select list is valid for one year and it having been issued on 16.09.2016 was valid upto 19.09.2017 before which the petitioners have filed these petitions and had also filed these writ petitions.
In this view of the matter, the Court does not find any prejudice whatsoever in allowing them to join subject to the terms and conditions mentioned herein above.
In view of the above, it is ordered that the petitioners herein, if they have been selected for the post of Assistant Teacher as against 16448 posts and there is no dispute in this regard nor is there any order of any Court which may impede their joining they shall be allowed to join on the vacant posts, subject to the further orders in this writ petition.
It is made clear that the service benefits shall be available to the petitioners only from the date of their joining and not prior to. They shall furnish an undertaking in this regard before the authority concerned on affidavit that they shall not claim such benefits from an earlier date.
This order will apply in those cases where the appointment orders had been issued and not in other case.
Let counter affidavit be filed within a period of four weeks.
The Writ Petition No. 18131(S/S) of 2017 and Writ Petition No. 20324(S/S) of 2017 are delinked from this bunch which may be listed separately in the 1st week of October, 2017."
At the very outset, Shri A.K. Yadav, learned counsel for second and third respondents has vehemently opposed the Writ Petition on the ground that as per Rule 17 of the U.P. Basic Education (Teachers) Service Rules 1981, the select list has been prepared and the same is valid for one year period and as such, at this stage, no relief can be extended to the petitioner.
Confronted with this situation, learned counsel for the petitioner apprised to the Court that on account of imposition of Model Code of Conduct for holding assembly elections in the State of U.P. on 04.01.2017, all selection proceeding in the State was stopped and after formation of the new government in the State of U.P, the Secretary, U.P. Basic Education Board, Allahabad had stopped all appointment procedure till further orders. No doubt, the aforesaid order dated 23.03.2017 was subjected to challenge by the aggrieved candidates by preferring Writ Petition no.27870 of 2017 (Neeraj Kumar Pandey and another vs. State of U.P. and others). The said writ petition was allowed by this Court on 03.11.2017 and the order dated 23.03.2017 was set aside. The Secretary of the Board was directed to complete the process of selection against remaining vacant posts within two moths strictly in terms of earlier circulars dated 16.06.2016, 19.09.2016, 15.12.2016 and 30.12.2016. Consequently, the Secretary, U.P. Basic Education Board, Allahabad vide circular dated 13.12.2017 had asked all the District Basic Education Officers of the State of U.P. for filling up the vacancies under horizontal reservation, which were remained vacant due to non- availability of suitable candidates of the aforesaid quota/category and even in pursuance thereof, the incumbents have already joined. It is sought to be contended that at no point of time the petitioner was at fault and due to aforesaid facts and circumstances, she could not join and at this stage, the rightful claim of the petitioner cannot be negated in arbitrary manner. In this backdrop, he submits that once the order of the Secretary of the Board dated 23.3.2017, whereby all appointment procedure was stopped till further orders, was set aside by this Court only on 3.11.2017 in Writ A No.27870 of 2017, then the petitioner was not at fault and this Court should come for rescue and reprieve to the petitioner.
This is factual situation that the petitioner has been selected on the post in question and there is no plausible explanation on record as to why she has not been offered joining immediately when a large number of posts of Assistant Teachers are lying vacant in the Primary Schools run and managed by the U.P. Basic Shiksha Parishad.
In view of above, without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this petition, on consent, is being finally disposed of by issuing a direction upon the third respondent- Secretary, Board of Basic Education, U.P. at Lucknow to pass appropriate order for joining of the petitioner without any loss of time keeping in mind the judgement and order dated 21.09.2017 passed by this Court within a period of six weeks from the date of receipt of a certified copy of this order. In case there is any legal impediment in her joining, the authority concerned shall provide an opportunity of hearing to the petitioner and pass a speaking and reasoned order within the said period.
Order Date :- 22.2.2018
A. Pandey