Court No. - 58
Case :- WRIT - A No. - 28971 of 2017 Petitioner :- Tripti Gupta Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Santosh Kumar Singh,Narendra Pratap Singh Counsel for Respondent :- C.S.C. Connected with Case :- WRIT - A No. - 59139 of 2016 Petitioner :- Tripti Gupta Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Narendra Pratap Singh,Santosh Kumar Singh Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav Hon'ble Ashwani Kumar Mishra,J.
Both the writ petitions are filed by the same petitioner and are being disposed off by this common judgement.
The first writ petition is directed against an order dated 08.06.2017, passed by the Director of Education (Secondary), Uttar Pradesh, Allahabad, whereby appointment letter already issued to the petitioner on 07.01.2017 has been cancelled in view of the Government orders dated 19.10.2016 and 15.12.2016. The other writ petition was filed earlier for a direction to be issued to the respondents to issue appointment letter to the petitioner in view of the fact that she had already been selected for appointment.
Advertisement was issued for recruitment to the post of Assistant Teacher in L.T. Grade in various government institutions in the year 2014, pursuant to which the petitioner had also applied. On account of her merit, petitioner was selected pursuant to the counselling held on 23.09.2015. It appears that petitioner had obtained B.Ed. degree from Dr. Bhimrao Ambedkar University, Agra, which was found suspicious, and therefore, a decision was taken to have her B.Ed. degree verified again. An appointment letter, however, was not issued to the petitioner for such reasons. It is submitted that petitioner's B.Ed certificate was duly verified but still appointment letter was not issued to the petitioner. Petitioner, therefore, approached this Court by filing Writ Petition No.59139 of 2016, in which following interim mandamus has been issued on 16.12.2016:-
"It is submitted that in compliance of the order passed by this Court in the earlier writ petition, the petitioner was allowed to appear in counselling dated 23.9.2015 where she was declared selected as woman candidate for Sanskrit subject in the dependant of Freedom Fighter Quota, however, despite being selected, the appointment letter is not being issued even though a considerable period of time has elapsed. It is submitted that initially an impression was given that some verification was required, however, it appears that now the verification has also been received and inspite of everything, the appointment letter is not being issued even though there is no legal impediment.
Looking to the controversy, this Court deems it fit to issue an ad interim mandamus to respondent no.3 to either issue an appointment letter or show cause within three weeks' from today as to why the appointment letter is not being issued even though there is no legal impediment.
List this matter on 11.1.2017, by which time, either the appointment letter will be issued and the Court will be informed accordingly or show cause would be done by filing counter affidavit."
An appointment order thereafter has been issued to the petitioner on 07.01.2017, which is annexed as Annexure-15 to the writ petition. This appointment, however, has been cancelled by the Director of Education on the ground that a previous decision had already been taken to cancel the on going recruitment itself.
The order passed by the Director is assailed on the ground that rights had crystallized in favour of the petitioner once she was selected, and the authorities would not be justified in cancelling her appointment letter, which has already been issued to the petitioner.
Learned Standing Counsel has opposed the petitions with reference the averment made in the counter affidavit.
Perusal of the records would go to show that petitioner had applied for appointment pursuant to the advertisement issued by the State on 22.07.2014. Appointments on the post of L.T. Grade Teacher in Government Institutions were to be made in accordance with the Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983. The petitioner had applied pursuant to the aforesaid advertisement, however, her candidature was not examined in the category of freedom fighter, although she had claimed such benefit in her application. This gave cause to the petitioner to approach this Court by filing Writ-A No.52901 of 2015, which was disposed of vide following orders passed on 15.09.2015:
"Heard Sri Santosh Kumar Singh, learned counsel for the petitioner and Sri Mata Prasad, learned Additional Chief Standing Counsel for the respondents.
Petitioner is seeking a direction to the respondents to consider her claim for appointment as Assistant Teacher Trained Graduate (L.T.) Grade in a Government Intermediate College under the category of Dependent of Freedom Fighter Quota.
The contention of the petitioner is that in the merit list, which has been declared, copy of which has been filed as Annexure-6 to the writ petition, the cut of merit of the female candidate under the category of Dependent of Freedom Fighter Quota is shown to be 68.26 whereas the petitioner is stated to have secured 70.79 quality point marks as stated in para-12 of the writ petition.
Reliance has been placed upon a Division Bench judgment of this Court in Writ Petition no.41279 of 2014, Isha Tyagi vs. State of U.P. and others.
Sri Mata Prasad, learned Additional Chief Standing Counsel submitted that the petitioner had never applied under the category of Dependent of Freedom Fighter Quota. She had applied in general category as stated by her in para 8 of the writ petition.
I have considered the matter.
Preliminary objection has to be rejected for the simple reason that benefit of reservation under the category of Dependent of Freedom Fighter Quota could not have been given to the petitioner as it was never made available to the grand daughter of Freedom Fighter. It was only after the judgment of this Court Isha Tyagi (supra) that the benefit of reservation under the Freedom Fighter quota has been extended to the grand daughter of freedom fighter.
In any case the petitioner had approached the Court before counseling, which is 23.9.2015 and therefore, in my opinion, judgment of Isha Tyagi (supra) is squarely applicable to the case of the petitioner.
Since the case is squarely covered by Full Bench decision, the matter is being disposed of with the consent of learned counsel for the parties at the admission stage.
This writ petition is therefore disposed of with a direction to the respondents to consider the claim of the petitioner under the category of Dependent of Freedom Fighter Quota with regard to the quality point marks obtained by her in the light of the observations made above."
The petitioner consequently was allowed to participate in the counselling and she was selected. The proceedings in that regard have been brought on record and the averment made in paragraph-17 to the writ petition are admitted. However, appointment letter was not issued to the petitioner only on the ground that some doubts were raised regarding the petitioner's B.Ed. certificate. It is asserted that the records have been got verified and petitioner's B.Ed. certificate has been found to be genuine. It is also stated that persons, who were selected alongwith the petitioner, were issued appointment orders and are also working, but such benefit was not extended to the petitioner. The petitioner, therefore, approached this Court by filing Writ-A No.59139 of 2016 contending that action of the respondent in denying issuance of appointment to the petitioner is arbitrary, inasmuch as the impugned action amounts to selective discrimination against the petitioner. An interim mandamus has been issued by this Court and thereafter appointment letter was also issued to the petitioner. The appointment, so issued, however, has been cancelled only on account of the Government Orders dated 19.10.2016 and 15.12.2016. These Government Orders provide that the process of recruitment initiated therein would not be continued any further.
These Government Orders, however, would not have the effect of taking away rights which have been crystallized prior to it. Petitioner admittedly was selected prior to 19.10.2016. Other persons, who were selected alongwith petitioner under the same select list, are already working. The mere fact that petitioner's B.Ed. certificate was being got verified and formal appointment was not issued to her would not mean that the rights already crystallized in favour of the petitioner prior to issuance of the Government Order dated 19.10.2016 and 15.12.2016 would cease to exist. Even otherwise, these Government Orders cannot be applied retrospectively against those who have already been selected.
Consequently, both the petitions succeed and are allowed. Order dated 08.06.2017 passed by the Director of Education (Secondary), Uttar Pradesh, Allahabad, stands quashed. A mandamus is issued to the respondents to allow the petitioner to continue pursuant to the appointment order issued to her on 07.01.2017. It would open for the respondents to change her placement in case vacancy is not available in the institution concerned. The petitioner would also be entitled to benefit of continuance since date of her appointment i.e. 09.01.2017.
Order Date :- 27.2.2019 Radhika