Court No. - 30
Case :- WRIT - A No. - 8356 of 2018 Petitioner :- Purnima Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Shukla Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Copy of instruction is taken on record.
Heard Sri Arvind Kumar Shukla, learned counsel for the petitioner and Sri S.C. Dwivedi, learned Standing Counsel appearing for the respondent.
Present writ petition has been filed with the following prayer :-
"i) issue a writ, order or direction in the nature of mandamus commanding the respondent nos.3 and 4 to permit the petitioner to appear in the examination to be held on 22nd and 23rd March, 2018."
On 21.03.2018, following order was passed :-
"The petitioner is before this Court with request to issue direction commanding the respondents to permit him to appear in the examination which is scheduled to be held on 22.3.2018. Record in question reflects that the petitioner had been before this Court by preferring Writ A No.38978 of 2017 (Purnima vs. State of UP and 2 others) and the said writ petition was disposed of by this Court on 28.8.2017 with following observations:-
"I find that the petitioner's case is covered by the judgment of the Supreme Court in Neeraj Kumar Rai (supra) as the only ground on which the Special Appeal was allowed and the judgment of the writ petition filed by the petitioner was set aside, was that the petitioner has 42% marks in Graduation. The said requirement was considered by the Uttarakhand High Court and the Rajasthan High Court elaborately, wherein it was found that as the requirement was not necessary in view of the fact that the candidates are B.Ed. As mentioned above, the Supreme Court has affirmed the view taken by both the High Courts.
Accordingly, the petitioner is granted liberty to move a representation before the second respondent who shall consider the cause of the petitioner in the light of the law laid down by the Supreme Court in Neeraj Kumar Rai (supra) expeditiously, preferably within two months from the date of communication of this order.
The writ petition is, accordingly, disposed of."
Learned counsel for the petitioner states that inspite of the categorical direction issued way back on 28.8.2017, at no point of time the respondents has decided the claim set up by the petitioner. He further apprises to the Court that the petitioner has also proceeded to file a contempt petition, which is pending consideration.
Confronted with this situation, learned Additional Chief Standing Counsel prays for and is accorded a week's time to seek instructions in the matter.
Put up this matter as fresh on 27.3.2018."
Pursuant to the above noted direction, learned Standing Counsel appearing for the respondent has produced a copy of the instruction before this Court. The respondent no.4 has given instruction that since no instruction has been received by him from the State Government and, therefore, the petitioner is not being permitted to fill up form and appear in the examination of Special B.T.C. Petitioner has also filed contempt petition for non- compliance of the order dated 28.8.2017, passed by this Court in Writ Petition No.38978 of 2017, wherein on 21.2.2018 notices have been issued.
Submission of learned counsel for the petitioner is that, in fact, respondent nos. 3 and 4 are the concerned respondent. He further submits that a perusal of the earlier judgement dated 28.8.2017 it is very much clear that the controversy regarding a person having less than 45% mark has already been settled by Hon'ble Apex Court and, therefore, there is no justification for withholding the petitioner for appearing in the examination. He further submits that in view of the judgment of the Apex Court, no instruction contrary to the judgment, as mentioned above, can be issued by the State Government, therefore, the petitioner's case is liable to be considered.
However, learned Standing Counsel submitted that it is only a case of non-receipt of the instruction from the State Government, the claim of the petitioner cannot be considered.
I have considered the submissions advanced by learned counsel of both the sides and perused the record.
In view of the categorical finding and direction of this Court passed on 28.8.2017, in the earlier writ petition, no other conclusion can be withdrawn except that petitioner is entitled to be considered for appearing in the examination of Special B.T.C. Accordingly, respondent nos. 3 and 4 are directed to permit the petitioner to appear in the next examination.
With the aforesaid directions/observations, present writ petition stands disposed of.
Order Date :- 30.3.2018 m.a.