Court No. - 58
Case :- WRIT - A No. - 13016 of 2018 Petitioner :- Smt. Leela Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Manish Kumar Jain,Mr. P.K. Jain, Sr. Advocate Counsel for Respondent :- C.S.C.,Pankaj Kumar Tyagi
Hon'ble Ashwani Kumar Mishra,J.
Petitioner's claim for appointment has been discarded by the District Basic Education Officer, by observing that petitioner has completed her BTC by distance education mode, which is impermissible. This order dated 5.5.2018 is assailed in the present writ petition.
Learned counsel for the petitioner submits that the controversy has otherwise been adjudicated by this Court in Writ Petition No.29123 of 2016, decided on 10.1.2018, vide following orders:-
"Petitioners are applicants, who have applied for appointment to the post of Assistant Teacher in primary institutions, which were to be filled pursuant to the Government Order dated 9th December, 2014. Their grievance is that though they possess B.T.C. Qualification by distance education mode, but their claim for appointment is not being considered.
While entertaining the writ petition, following orders were passed on 22.6.2016:-
"Learned Counsel for the petitioners has invited the attention of the Court to an order dated 05.11.2015 passed by this Court in Writ-A No.62248 of 2015 (Mujammil Husain and 2 others v. State of U.P. and 2 others), wherein in the case of similarly placed persons, the following order was passed:-
"All the petitioners claim to be Shiksha Mitra. While they were working as Shiksha Mitra, they have completed two years B.T.C. Course by Open and Distance Learning Method.
It is stated that the said training was undertaken by the petitioners in pursuance to the permission granted by the N.C.T.E.
The Full Bench in the case of Anand Kumar Yadav and others v. Union of India and others, 2015 (8) ADJ 338 (FB) while considering the absorption of the Shiksha Mitra, has also come to consider about the validity of the training completed by the Shiksha Mitra under the Open and Distance Learning Method.
The full Bench has not adjudicated this matter on the ground that it would be inappropriate to consider the said issue under Article 226 of the Constitution, which would have the effect of nullifying or abrogating the training qualifications which have been imparted to a large number of Shiksha Mitra. However, the Full Bench left it open to the N.C.T.E. to take appropriate decision in this regard.
The grievance of the petitioners is that the respondents are not permitting the petitioners in the counselling which is under way for the appointment of the Assistant Teachers in Primary Schools/Junior Basic Schools. Having regard to the facts and circumstances of the case, I am of the view that the petitioners have made out a prima-facie case.
Accordingly, the concerned authority, respondent nos. 2 and 3 are directed to permit the petitioners to participate in the counselling. However, their result shall not be declared without the leave of the Court."
Standing Counsel has accepted notice on behalf of respondent no.1 while Sri S.C. Yadav has accepted notice on behalf of respondent nos. 2 and 3. The respondents are granted one month time to file counter affidavit. Rejoinder affidavit may be filed within three weeks thereafter. List after expiry of the aforesaid period before appropriate Bench.
Considering the facts and circumstances of the case, the benefit of interim relief which has been granted to the petitioners in Mujammil Husain and others, quoted hereinabove, is extended to the petitioners of this writ petition also.
Certified copy of the order be issued to the petitioners today."
Learned counsel for the petitioners submits that pursuant to the interim order, petitioners have been allowed to participate in the counselling, but their results have been withheld on account of pendency of the writ petition. Reliance is placed upon an order passed by the Lucknow Bench in Service Single No.1460 of 2016 (Kumari Sarita Devi and another Vs. State of U.P. and others), dated 19.12.2017, whereby similar petitions have been disposed of with the direction to declare the result of the petitioners. A supplementary affidavit has been filed today stating that the applicants were initially appointed as Shiksha Mitra and pursuant to the liberty granted by the NCTE on 14.1.2011, they have completed B.T.C. course by distance education mode. Submission is that once the petitioners have cleared B.T.C. by distance education mode, which was granted recognition by NCTE, the claim of petitioners for appointment to the post in question cannot be denied only on the ground that they have passed the B.T.C. by distance education mode. Reliance is also placed upon a Division Bench judgment of this Court in Gyanendra Kumar Sharma and 49 others Vs. State of U.P. and others, delivered in Special Appeal No.1271 of 2007, wherein the Division Bench had observed that the qualification obtained by distance education mode is also a valid qualification, if recognition has been granted to it by the NCTE.
The submissions advanced on behalf of petitioners are not disputed. In para 2 of the counter affidavit, it is admitted that four posts have been kept reserved for the petitioners, and that their claim can be considered subject to the final orders passed in the writ petition.
In view of the above, this writ petition stands disposed of with the observation that claim of the petitioners for appointment to the post of Assistant Teacher pursuant to the Government Order dated 9th December, 2014 shall be considered on merits and in accordance with law. Claim of the petitioners would not be declined merely for the reason that B.T.C. Training Qualification has been obtained by them by distance education mode, in view of the fact that such course has been granted recognition by the NCTE. Such consideration shall be made at the earliest possible, preferably within a period of three months from the date of presentation of certified copy of this order."
Learned Standing Counsel, as well as Sri Pankaj Kumar Tyagi appearing for the District Basic Education Officer, do not dispute that controversy has already been adjudicated by this Court in the aforesaid order.
For the reasons aforesaid, order dated 5.5.2018 cannot be sustained and is quashed. The respondents are directed to take a fresh decision in the matter, keeping in view the observations contained in the order dated 10.1.2018, passed in Writ Petition No.29123 of 2016. The required consideration shall be made within a period of three months from the date of presentation of certified copy of this order.
Writ petition is, accordingly, disposed of.
Order Date :- 31.5.2018 Anil