Court No. - 4
Case :- WRIT - A No. - 19390 of 2017 Petitioner :- Vinita Sharma And Anr. Respondent :- State Of U.P. And 5 Ors. Counsel for Petitioner :- A.C.Tiwari(Ac) Counsel for Respondent :- C.S.C.,Prem Prakash Yadav Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. By means this writ petition under Article 226 of the Constitution of India, the petitioner has questioned the correctness of the order dated 15.4.2017 passed by the District Basic Education Officer, Bijnor, Annexure 20 to the writ petition.
3. Briefly stated the facts are owing to the advertisement initially issued in the year 2016 against 1600 and odd vacancies, the respondent proceeded to make selection of trainee teachers to provide them initially training for 6 months and after successful training, appointment against vacancies sought to be filled in pursuant to the selection process. It appears that due to fall in of the cutoff marks at various stages of counselling, respondents proceeded to make one after another notifications and the last one being in the series dated 27.7.2016, to hold counselling to fill up left over vacant situations.
4. The petitioners before this Court are of general category and the applicants against vacancies of Arts and Science having quality point marks as 120 and 119 respectively. The notification dated 23rd July, 2016 clearly demonstrated that cutoff marks for the women general in Arts category was 118 and so was the women general science category 118 and there is no quarrel about that.
5. Yet another notification was issued on 27th July, 2016, whereby it was notified that in the category general Arts (women) there is one vacant situation whereas in the category of general science (women) there was another one post besides other vacant situations in respect of different other categories. So naturally applicants became entitled for consideration as they had marks over and above the minimum cutoff prescribed under the notification dated 23rd July, 2016. It appears that after due selection as per counselling so held, the petitioners were found to be the candidates who deserved appointment and accordingly they were sent for training as they were selected as teachers trainee and their names were forwarded for the training purposes for ultimate appointment against vacant situation under the order dated 5.8.2016. These documents are collectively appended as annexure 6 to the writ petition.
6. After completing practical training of three months, the petitioners were further transmitted for theory training for another three months vide order dated 5.11.2016 and the documents to that effect has been filed as Annexure 7 to the writ petition.
7. Thereafter they were relieved and certificate of Block Education Officer dated 18.2.2017 was also issued. Thus, for the post-training examination was only a formality after having successfully completed training as required for such appointment as Assistant Teacher as per advertisement so made.
8. However, District Basic Education Officer got some report from the Principal DIET Bijnor, who had newly joined on 31.8.2016. In the report dated 23rd February, 2017, it was stated that selection process in respect of the petitioner was not proper as reshuffling required under the Government Order 1994, 25th March, 1994, was not done. This led to the issuance of notice at the end of the District Basic Education Officer chiefly relying upon the report of the Principal, DIET who had admittedly joined subsequently after completion of training of the petitioners and was not party to the selection in which petitioners were selected and sent for training. The effect of the notice was that the petitioners were not permitted to appear in the post-training examination, which is mandatory to offer appointment on a successful training and resultantly the petitioner approached this Court challenging the said notice vide writ petition no. 11832 of 2017. This Court considered the arguments advanced by these very petitioners in that writ petition but, since it was a show cause notice only, petitioners were directed to represent themselves and the respondents were directed to take appropriate action in terms of passing some order or to send them training if found otherwise eligible. The order was passed on 22nd March, 2017 and in compliance thereof, the petitioners made respective representations to the authority concerned, namely, District Basic Education Officer, Bijnor 4th respondent herein. 4th respondent conducted hearing in the matter, verified records and ultimately passed an order on 15.4.2017 finally closing the chapter regarding validity of selection of the petitioners and held them not entitled for any benefit out of the said selection. The selection was found to be faulty one as suffering from the vice of irregularity for not undertaking the process of reshuffling in respect of two teachers namely, Pratima Sharma and Minakshi Chaudhary who were of the reserved category.
9. The argument advanced on behalf of the petitioners is that those two candidates pratima Sharma and Manisha Chaudhary had already been selected as per their own merits, and even prior to two notifications dated 27.7.2016 and 23rd July, 2016 they were sent for training and their names find place in the final list of the selected candidates for the purpose of appointment and posting issued in the year 2015 and name of Pratima Sharma figures at item no. 20 whereas Manisha Chaudhari's name figures at item no. 102 and, therefore, according to the counsel for the petitioner there was no question of any reshuffling in their respect.
10. Learned counsel for the petitioner has also argued that once these very candidates were duly appointed as per their own merits in compliance of paragraph 4 of the Government Order (supra), there does not arise any question of their fresh appointment, and therefore, he contends that the very report submitted by the DIET Principal was short of correct facts and for lack of appropriate knowledge/ information about the selection held and obviously, when she had joined on 31st August, 2016 much after selection process pursuant to which petitioners were already under training.
11. To buttress his arguments, counsel for petitioner has drawn also the attention of the Court to the facts as stated in paragraph 29 of the writ petition wherein specific dates of joining of these two persons whose name figured in the report of the Principal DIET, has been given as 20th January, 2015 and 15th February, 2015.
12. Yet, another argument advanced on behalf of the counsel for the petitioner is that 4th respondent has not applied its mind independent of the report and the reply submitted before him by the petitioners. He has simply referred the report in the order impugned and thereafter has proceeded on a legal advise submitted by the District Government Counsel which according to learned counsel for the petitioner should have been taken as advisory only and should not have formed the basis/ foundation of the order more especially in the light of the order of this Court passed in the earlier writ petition.
13. Per contra, the argument advanced on behalf of the respondent is that paragraph 4 of the Government Order of 1994 is mandatory and if Principal, DIET has been writing for reshuffling and reshuffling had not taken place, the 4th respondent was left with no option but to hold that selection was vitiated in law.
14. Having heard learned counsel for the parties and the arguments advanced across the Bar and having perused the record, I find it from the perusal of the records that has been brought and having not been denied in the counter affidavit, that petitioners were of-course, selected pursuant to the advertisement issued on 16.3.2016 and 27.3.3016 and had cutoff marks 120 and 119 for general Arts and general Science category respectively and that they were above of minimum cutoff marks 118 as notified in the notification dated 23rd July, 2016, for the respective categories. The question, therefore, centres around the report of the Principal DIET only because it is he who has questioned the selection of the petitioners. It is a fact established on record that Principal DIET who wrote the report was not party to any selection process of the district Bijnor as he had come to join on 31st August, 2016 only whereas petitioners then were in the last leg of their training i.e. to appear in the post- training examination.
15. Looking to the report, which has been brought on record dated 24th March, 2017, annexed as Annexure 14 to the writ petition, I find that only ground taken is that no reshuffling had been done whereas Minakshi Chaudhary had the cutoff marks of 121 with date of birth as 1.3.1996 and therefore same ought to have been filled up by Minakshi Chaudhary only by conducting reshuffling. The report dated 24th March, 2017 only gives reference to her as candidate but does not acknowledge the fact whether Minakshi Chaudhary was already selected and appointed in 2015. It appears that report was prepared in a very cursory manner without verifying the records looking into details about Minakshi Chaudhary before rejecting the request of the petitioners who had already completed training. Under the order impugned, I find that report of the Principal DIET has been accepted Ipso facto.
16. A perusal of the order and recitals made therein in conclusion part is only reflective of one thing that there has been absolutely no application of mind and but for the legal opinion of the District Education Council , it appears that administrative authority while taking a decision has forgotten altogether the Basic principle behind administrative decision making that there should be a due appreciation of facts to justify correctness of reasons assigned in a report on the basis of which enquiry was initiated and the finding of fact is being returned. A mere reference to the report or mere reference to the contention would no suffice to meet minimum requirement of procedural fairness that is required to be there while recording a finding of fact in an administrative decision making process.
17. The contention on behalf of the learned counsel for the petitioner carries weight that legal opinion tendered by the District Government Council would only be advisory in nature and by itself cannot form a conclusive proof to return finding without due verification of the facts. This question of aid of legal opinion arises in evaluating something provided officer concerned/ authority concerned had referred to the report in detail. Order completely lacks those details on the basis of which legal opinion has been tendered . This practise of the administrative officer, who is in possession of the records and who can verify the facts to pass orders, chiefly relying upon the legal opinion tendered by District Government Counsel (civil) is deprecated and for this reason alone the order cannot be sustained.
18. The matter could have been remitted back to the authority concerned but in view of non denial what has been stated in paragraph 29 of the writ petition that those two persons whose reshuffling was sought to be done in the report of the Principal, DIET had already been appointed, there is no point in remitting the matter to the authority to revisit the matter. The Court is of the considered opinion that writ petition deserves to be allowed. The petitioners have already undergone training, and therefore, it is directed that they shall be allowed to appear in post training examination within 4 weeks of the presentation of certified copy of the order and thereafter results would be declared if they are found ultimately successful in the examination , they shall be offered appointment in accordance with law. The entire exercise will be carried out within period of three months in total.
19. Writ petition is allowed with the aforesaid observations and directions.
Order Date :- 30.11.2018 Sanjeev