Court No. - 33
Case :- WRIT - A No. - 9163 of 2021 Petitioner :- Kuldeep Narayan Mishra And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vinit Mishra Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition has been filed with the following prayers:-
"a) issue a writ, order or direction in the nature of mandamus directing the concerned respondents to take appropriate action in compliance of the order dated 25.07.2017 (annexure no.2) passed by the Hon'ble Supreme Court in Civil Appeal No.4347-4375 of 2014 (State of U.P. and others v. Shiv Kumar Pathak and others) and to take immediate steps for filling up remaining 6170 vacancies of Assistant Teachers in primary schools run by Basic Shiksha Parishad in accordance with law.
b) issue a writ, order or direction in the nature of mandamus directing the concerned respondents to consider the candidature of the petitioners for the remaining vacancies of 72825 posts of Assistant Teachers advertised in the year 2011."
2. Petitioners assert that pursuant to Government Order dated 27.9.2011 and consequential advertisement dated 30.11.2011 for filling up 72825 posts of Trainee Teachers in primary schools managed by Basic Shiksha Parishad, U.P. they applied for appointment. Petitioners, however, have not been selected. The advertisement and subsequent Government Orders in respect of said recruitment became subject matter of a series of litigation, which culminated in the judgment of the Supreme Court in Civil Appeal No.4347-4375 of 2014 (State of U.P. and others Vs. Shiv Kumar Pathak and others). Para 16 to 19 of the said judgment dated 25.7.2017 is reproduced hereinafter:-
"16. There is no manner of doubt that the NCTE, acting as an 'academic authority' under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE Act, was competent to issue Notifications dated 23rd August, 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. However, since NCTE itself has taken the stand that notification dated 11th February, 2011 with regard to the weightage to be given to the marks obtained in TET is not mandatory which is also a possible interpretation, the view of the High Court in quashing the 15th Amendment to the 1981 Rules has to be interfered with. Accordingly, while we uphold the view that qualifications prescribed by the NCTE are binding, requirement of weightage to TET marks is not a mandatory requirement.
17. As a result of above, in normal course the State would have been at liberty to proceed with the selection in terms of advertisement dated 7th December, 2012 in accordance with the amended rules by way of 15th amendment, in view of developments which have taken place during pendency of these appeals, the said advertisement cannot proceed and while upholding the said advertisement, relief has to be moulded in the light of developments that have taken place in the interregnum.
18. Vide interim order dated 25th March, 2014, this Court directed the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in terms of the impugned judgment. Thereafter, on 17th December, 2014, the said order was modified and the State was directed to appoint candidates whose names were not involved in malpractices in the TET test and who had obtained 70% marks (65% for SC, ST, OBC and physically handicapped or any other category covered by the Government policy for reservation). 54,464 posts have already been filled up in compliance of the orders of this Court. The said appointments were subject to result of these matters. It was also observed that if anyone without TET qualification is appointed his services will be terminated. Vide order dated 2nd November, 2015 it was noted that against 72,825 posts which were advertised, 43,077 candidates had completed training and were working while 15,058 candidates were undergoing training. Around 14,690 posts were vacant. It was further observed that candidates who had the required percentage of marks in terms of order dated 27th July, 2015 were to file their applications and a Committee constituted for the said purpose could verify such percentage and if parity was found the same benefit could be extended.
19. We have been informed that 66,655 teachers have already been appointed in pursuance of the interim orders of this Court. Having regard to the entirety of circumstances, we are not inclined to disturb the same. We make it clear that the State is at liberty to fill up the remaining vacancies in accordance with law after issuing a fresh advertisement."
3. A bunch of writ petitions with leading Writ Petition No.38431 of 2017 (Akhilesh Kumar Pandey and others vs. State of U.P. and others) came to be filed before this Court with a prayer to direct the respondents to take appropriate action in compliance of the aforesaid order dated 25.7.2017, passed by the Supreme Court in Civil Appeal No.4347-4375 of 2014, and to take steps for filling up the remaining 6170 vacancies of Assistant Teachers in primary schools. The writ petitions came to be dismissed vide following orders passed on 20.9.2017:-
"From the above order it is manifestly clear that the Supreme Court has saved 66,655 appointments which were made from time to time in compliance with the various orders passed by the Supreme Court and the State was directed to fill up the remaining vacancies in accordance with law after issuing a fresh advertisement.
Relevant it would be to mention that along with the aforesaid Civil Appeal Nos. 4347- 4375 of 2014, several contempt petitions were tagged. Those contempt petitions have also been disposed of on the same day i.e. 25th July, 2017. It was also recorded in the order that pending applications, if any, shall also stand disposed of. The relevant part of the order reads as under:
"...In terms of the signed Reportable Judgment, these matters are disposed of:
*** *** *** Pending applications, if any, shall also stand disposed of."
In view of the clear direction of the Supreme Court, this Court finds that the relief sought for by the petitioners to reopen the issues on merit regarding appointment of 862 candidates in pursuance of the interim order dated 07th December, 2015 is misconceived. As noted above, all the 66,655 appointments including 862 candidates have not been disturbed by the Supreme Court. Thus, this Court has no jurisdiction to even consider the alleged illegality, if any, in the appointments made pursuant to the said interim order.
Additionally, the Supreme Court has directed to issue fresh advertisement for recruitment in respect of remaining vacancies. I am of the view that if the prayer sought by the petitioners is granted, it can tantamount to modify the order of the Supreme Court, therefore, said prayer cannot be granted.
For the reasons mentioned hereinabove, I find that the writ petitions lack merit and are accordingly dismissed.
No order as to costs."
4. The above view taken has been affirmed with dismissal of Special Appeal Defective Nos.582 of 2017 and 593 of 2017 vide following orders dated 27.11.2017:-
"1. Heard Shri Sunil Kumar Srivastava, learned counsel for the appellants, learned Standing Counsel and Shri Ashok Kumar Yadav, learned counsel appearing for the respondents.
2. The Apex Court, in the case of State of U.P. and others vs. Shiv Kumar Pathak in Civil Appeal Nos. 4347-4375 of 2014, while deciding entire bunch, clearly directed that appointments already made would continue but in respect of remaining vacancies, Government was directed to proceed for making fresh advertisement.
3. In view of the aforesaid direction, issued by Apex Court, learned Single Judge has rightly declined to grant any relief to appellants on the ground that they are candidates claiming appointment pursuant to selection made as per Government Order dated 27th September, 2011, but having not been appointed, now the vacancies have to be filled in by fresh process of recruitment.
4. Since, operative part of the order in State of U.P. and others vs. Shiv Kumar Pathak (supra), clearly shows that with regard to existing vacancies, Government shall proceed to make fresh recruitment in our view, learned Single Judge has rightly declined to grant any relief to appellants.
5. Since, matter is concluded by judgment of Apex Court, we find no infirmity with the judgment under appeal passed by learned Single Judge so as to warrant interference.
6. Appeal is, accordingly, dismissed."
(emphasis supplied by me)
5. Yet another Writ Petition No.9366 of 2018 (Raghvendra Pratap Singh And 06 Others Vs. State Of U.P. And 02 Others) came to be filed before this Court, which was dismissed on 26.4.2018, relying upon the Division Bench judgment of this Court in Special Appeal Defective Nos.582 of 2017 and 593 of 2017.
6. It appears that in the year 2019 and 2021 again writ petitions have been filed with identical prayers notwithstanding the fact that such petitions have already been dismissed by this Court and the view taken in that regard has been affirmed by the Division Bench. Taking note of such position in the present writ petition following orders were passed on 11.8.2021:-
"As prayed by the learned counsel for the respondents, post once again on Monday i.e. 16.08.2021 along with records of Writ Petition No. 12337 of 2019 and all other connected petitions."
7. I have heard Sri Vinit Mishra learned counsel for the petitioners and Sri Arun Kumar for the respondents and have perused the materials brought on record.
8. This Court finds that for identical prayer, as is made in the present writ petition, earlier writ petitions filed before this Court have already been dismissed and special appeal filed in the matter has also been rejected.
9. For the reasons recorded in Writ Petition No.38431 of 2017 (Akhilesh Kumar Pandey and others vs. State of U.P. and others), as affirmed in Special Appeal Defective Nos.582 of 2017 and 593 of 2017, as followed in Writ Petition No.9366 of 2018, this writ petition is also dismissed.
Order Date :- 19.8.2021 Anil