Court No. - 58
Case :- WRIT - A No. - 10409 of 2018 Petitioner :- Om Prakash And Another Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- Ganesh Mani Counsel for Respondent :- C.S.C.,Nand Kishore Singh
Hon'ble Ashwani Kumar Mishra,J.
Petitioners had applied for the post of Assistant Teacher pursuant to advertisement issued for appointment to 12460 posts vide Government Order dated 15.12.2016, but they could not participate in the counselling on the ground that No Objection has not been issued to the petitioners.
It appears that petitioners were appointed as Shiksha Mitra and their services were absorbed as Assistant Teacher. The issue of absorption of Assistant Teachers has ultimately travelled to the Apex Court and such absorption has been set aside. The Apex Court found that the Shiksha Mitra has no such right to be absorbed. While disposing of the matter, Hon'ble Supreme Court Civil Appeal No.9529 of 2017 State of U.P. and another Vs. Anand Kumar Yadav and others was pleased to make following observations in para-26:-
"26. Question now is whether in absence of any right in favour of Shiksha Mitra, they are entitled to any other relief of preference. In the peculiar facts situation, they are to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in term of advertisement for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority.Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides."
Learned counsel for the petitioners submits that similarly placed persons have approached this Court by filing Writ Petition No.39058 of 2016 and the order passed therein has been brought on record with which parity is claimed by the petitioners. Operative portion of the order dated 28.3.2016 passed in Writ Petition No.39058 of 2016 reads as under:-
"I have considered the submissions of learned counsel for the parties. Prima facie, this Court is of the view that such candidates, like the petitioners, can be permitted in counselling and if they are selected for appointment, a time frame can be fixed requiring them to submit 'No Objection Certificate' from their previous employer. But issuing a blanket ban in their participation, without the 'No Objection Certificate' from their employers, may not be reasonable.
The matter requires consideration.
Learned Standing Counsel has accepted notice on behalf of the respondent nos.1 and 4; and Sri A.K. Yadav has accepted notice on behalf of the respondent nos.2 and 3. They pray for and are allowed four weeks time to file counter affidavit. Two weeks thereafter shall be for the petitioners to file rejoinder affidavit.
List this petition on 17.10.2016. In the meantime, it is provided that the respondents would not prohibit the petitioners from participating in the counselling, pursuant to their applications, against vacancies notified under the Government Order dated 16.06.2016 on the ground that they do not have No Objection Certificate from their employer. However, in case the petitioners are selected it would be open to the respondents to fix a time frame for submission of 'No Objection Certificate' of their employer."
Learned counsel for the petitioners also places reliance upon an order passed by the Lucknow Bench of this Court in Service Single No.18762 of 2017, in which following observations have been made:-
"...................
Now, in these compelling circumstances they have approached this Court saying that some of the 16448 posts against which they had been selected are still lying vacant, therefore, they should be allowed to join against them as they have lost the other job.
Learned Additional Chief Standing Counsel has placed before the Court an instruction dated 13.09.2017 in pursuance to an order dated 04.09.2017 passed in Writ Petition No. 18762(S/S) of 2017 which states that joining within the time stipulated in the appointment order is a must failing which the said appointment order ceases to be effective. While there is no dispute about the recitals contained in the instructions, the Court is of the view that there is already a dearth of Assistant Teachers in the field Basic Education in the State of U.P. The petitioners herein are already selected after following due and proper advertisement and it is nobody's case that the selection was improper or illegal in any manner. The only reason they could not join on the post in question was the predicament which they faced as narrated above, therefore, the question which arises is if no mandatory Rule is being violated in a manner so as to prejudice the State Government or any other person in any manner what is the difficulty in allowing the petitioners to join on the vacant posts, as, it would facilitate their services for imparting Basic Education to the Children. As already state above, thousands of posts of Assistant Teachers are still vacant.
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.
. "
Petitioner had not been permitted to participate as No Objection Certificate had not been issued to them. Subsequently, under the orders of the Hon'ble Supreme Court, the appointment of Assistant Teachers, who were absorbed after their engagement as Shiksha Mitra, has already been set aside. Learned counsel for the petitioners submits that there are vacant posts still available and that their case for appointment be considered against such vacant posts in district concerned, particularly in view of the observations made by the Hon'ble Supreme Court in para 26, noticed above.
Learned counsel for the respondent no.3 submits that in case vacancies are still available, the claim of the petitioners shall be considered, in accordance with law.
In the facts and circumstances of the case, as petitioners' absorption on the post of Assistant Teacher has now been set aside, it would be appropriate to dispose of this petition with the observation that in case any vacant post still remains available in the district concerned, the claim of petitioners for appointment would be considered by the authority concerned, within a period of three months from today in the respective category to which petitioners belongs. This observation is being made considering the peculiar facts of the present case as well as the observation made by the Apex Court in para-26 of the judgment.
Order Date :- 24.4.2018 n.u.