Court No. - 4
Case :- WRIT - A No. - 22509 of 2018 petitioners :- Mohammad Zaved Mekrani And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for petitioners :- Lavlesh Kumar Counsel for Respondent :- C.S.C.,Ashok Kumar Singh Hon'ble Ajit Kumar,J.
Counter affidavit and rejoinder affidavits filed today are taken on record.
The controversy involved in the present case centres around non permission for the counselling of the petitionerss for the purposes of recruitment as Assistant Teacher in a Junior Basic School on the ground that he did not possess no objection certificate (for short “NOC”) from their erstwhile respective employer where they were working as Siksha Mitra.
The matter travelled up to this Court in the case of Sandeep Kumar Chaurasiya and Others v. State of U.P. in writ petition no. 39058 of 2016 in which this Court repelled the argument of the respondents with regard to the compulsory presentation of the NOC at the time of counselling, vide order dated 23rd August, 2016 and directed that the counselling be held even without NOC. Consequently, Secretary, U.P. Basic Education Board Allahabad issued a circular letter dated 26th August, 2016 directing the District Basic Education Officer of the various districts of the State to invite the candidates for fresh counselling in those cases where they have been refused on the ground of non presentation of the NOC.
In the case in hand submission advanced is that 16th and 17th August, 2016 was fixed for counselling in district Siddhart Nagar, but on account of non presentation of the NOC, the petitioners were not permitted to participate. They made a representation to that effect, but that was not paid any heed at the end of the concerned respondent and, consequently, petitioners could not participate in the counselling and their rights got prejudiced as similarly situated candidates in other districts were permitted for counselling.
Learned counsel for the petitioners have drawn the attention of the court to the several advertisement issued by the District Basic Education Officer of the other districts where specific notification was issued inviting the candidates to participate in a fresh round of counselling in respect of those cases where counselling got refused on account of non presentation of the NOC, but in the present case the District Basic Education Officer did not issue any notification.
Per contra, the argument advanced on behalf of the respondent is that District Basic Education Officer of district Siddhart Nagar, considering the above aspect of the matter had issued notification on 19th August, 2016 to the effect that those candidates who could not produce NOC, are required to produce it by 24th August, 2016 and hence the the contention of learned counsel for the petitioners that they were not permitted for counselling, stands falsified and as such they are not entitled to any relief.
Having heard learned counsel for the parties and having perused the record, I find that like other districts of the State, District Basic Education Officer, Siddharth Nagar did not issue any notification inviting for fresh counselling in case of those candidates who could not participate on account of non presentation of the NOC. This fact is not disputed by the counsel for the respondent as well. Going by the notification dated 19th August, 2016 on which heavy reliance being placed by the counsel representing District Basic Education Officer, I find that this order virtually overreaches the direction of this Court passed in the case of Sandeep Kumar Chaurasiya (supra) and, therefore, it cannot be said or presumed for that . that any opportunity was afforded to the petitioners or the like candidates in district Siddharth Nagar to participate in any fresh round of counselling as is clearly contemplated in the circular letter issued by the Secretary U.P. District Basic Education Board, Allahabad dated 26th August,2016 which clearly spells out in a quite unequivocal terms that participation should have been permitted to who those candidates who could not produce NOC Relevant paragraph of the circular which is reproduced hereunder:
“;gka ;g mYys[kuh; gS fd pwafd lsokjr vH;FkhZ }kjk vius dk;Zjr laLFkku@ lsok es fu;qfDr vf/kdkjh ls fdlh vU; lsok gsrq vkosnu fd;s tkus dk izkfo/kku lkekU; lsok fu;eks ds vUrxZr gS rFkk vukifRr izek.k i= dh vko';drk dbZ dkj.kks ls iMrh gS tSls fd & dk;Zjr deZPkkjh ds lEcU/k es dksbZ vuq'kklfud dk;Zokgh xfreku gksus dh n'kk u gks rks Hkh ek0 U;k;ky; ds vkns'kks ds vuqikyu es mUgsa bl vk/kkj ij dkmfUlfyax p;u izfdz;k ls ckgj u j[kk tk; rFkk vukifRr izek.k i= izkIr djus gsrq mUgsa fu;qfDr vkns'k gks tkus ds ,d ekg Hkhrjvius iwoZ fu;qfDr izkf/kdkjh ls vukifRr izek.k i= izkIr dj uohu fu;qDr izkf/kdkjh dks miyC/k djkuk lqfuf'pr fd;k tk;A“ In view of above, factual position as has come to be emerged from the pleadings raised and the documents brought on record, is that there was no attempt on the part of 4th and 5th respondent to permit participation of such candidates. Accordingly, in the considered opinion of the court petitioners have been wholly, illegally arbitrarily denied counselling only for want of no objection certificate. At this stage, learned counsel for the respondent states that the matter of the petitioners shall be considered as and when in the matter of enquiry in respect to 43 candidates who had obtained appointment by submitting forged certificates brought to its logical end and the situation becomes vacant.
In reply thereof, counsel for the petitioners submits that there are still vacancies existing in district Siddharth Nagar within 48 vacancies in respect of which counselling was held.
In the opinion of the court since petitioners have made out case of wrongful denial of participation in the counselling and have been discriminated against, it is hereby directed that in case if vacancies are existing as on today in district Siddharth Nagar, petitioners shall be immediately permitted for counselling and thereafter consequences would follow. Exercise shall be taken within period of four weeks from the date of presentation of certified copy of the order. However, in the event the vacancy does not exist a direction is issued that as and when 43 vacancies rendered vacant on account of the removal of such selected candidates pursuant to the enquiry underway, the petitioners shall be permitted for counselling in preference to any other candidate against those vacancies, however, as per their own merits.
The writ petition stands allowed and disposed of in terms of the directions made hereinabove.
Order Date :- 28.11.2018 Sanjeev