Court No. - 58
Case :- WRIT - A No. - 5998 of 2018 Petitioner :- Pooja Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh With Case :- WRIT - A No. - 9775 of 2018 Petitioner :- Km. Archana Shukla Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashwani Kumar Yadav Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh
Hon'ble Ashwani Kumar Mishra,J.
These two petitions relates to claim of appointment against solitary post and are heard together.
Heard Sri K. Shahi for petitioner, Pooja in Writ Petition No. 5998 of 2018, Sri A.K. Yadav for petitioner in Writ Petition No. 9775 of 2018 and Sri Sanjay Kumar Singh for the District Basic Education Officer.
Process was initiated on 16.6.2016 for appointment to be made on 16448 posts of Assistant Teachers in the Basic institutions run by the Basic Shiksha Parishad. In the first round of counselling petitioner of Writ Petition No. 9775 of 2018 was selected but she had not joined as she was working as Shiksha Mitra and later had been absorbed as Assistant Teacher. As No Objection Certificate was not issued to her, therefore, the petitioner in Writ Petition No. 9775 of 2018 could not join. Accordingly, her appointment was cancelled. A fresh round of counselling thereafter was conducted in which petitioner Pooja was selected and appointed. She too has not joined as no objection certificate was not issued to her for the same reason i.e. she was working as Shiksha Mitra and later absorbed as Assistant Teacher. The petitioners appeared to have acquired interest in joining after their absorption on the post was set aside under orders of this Court, which was affirmed by the Hon'ble Apex Court in the State of U.P. and others Vs. Anand Kumar Yadav and others decided on 25.7.2017. Claim of petitioners for joining has been rejected by the District Basic Education Officer, Kannauj by the orders, which are impugned in the two writ petitions.
Sri K.Shahi appearing for the petitioner in Writ Petition No. 5990 of 2018 submits that appointment of persons selected in the first counselling was cancelled as they had failed to join and, therefore, such persons can have no right to be appointed against the said post. It is submitted that the petitioner since was selected, she is entitled to join on the post in question. Sri A.K. Yadav for the other petitioner also contends that they are placed at par with the other petitioner, and there is no reason why her claim be discarded against the solitary post available in the district.
Having heard learned counsel for the parties, this Court finds that both the petitioners are identically placed, inasmuch as they were selected and appointed but have not joined for the same reason i.e. they were absorbed on the post of Assistant Teacher on account of their initial engagement as Shiksha Mitra. It is only after order passed by Hon'ble Apex Court on 25.7.2017 that both the petitioners have applied for joining. The appointment letter issued to petitioners in both the writs were similar and contained a specific clause that appointment would come to an end if the petitioners do not join. In such circumstances, the appointment of petitioners in both writ petitions stands cancelled due to their non-joining.
In such circumstances, both the petitioners are found to be on same footing. It is not is issue that one unreserved post is still lying vacant. Hon'ble Supreme Court in State of U.P. and others Vs. Anand Kumar Yadav and others has been placed to observe as under in paragraphs 25 and 26 of the judgment:-
"25. On the one hand, we have the claim of 1.78 Lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court.
26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements 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."
Considering the fact that petitioners possesses the requisite qualification and there exists a vacant post, it would be appropriate to dispose of both the petitions with the direction upon the District Basic Education Officer to fill up the vacant post from the person having highest merit in the selection proceedings undertaken earlier. Claim of other persons, similarly placed, shall also be considered in accordance with their respective merit.The needful in that regard would be undertaken within a period of six weeks.
Order Date :- 25.4.2018 AK Pandey