Court No. - 6
Case :- WRIT - A No. - 24099 of 2018 Petitioner :- Vinay Kumar Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Taniya Pandey Counsel for Respondent :- C.S.C.,Mohd Shere Ali
Hon'ble Yashwant Varma,J.
Heard Ms. Taniya Pandey, learned counsel for the petitioner and the learned Standing Counsel who appeared for the respondents 1 and 4.
On the last occasion, this Court was constrained to note that learned counsel representing the Secretary, Basic Shiksha Parishad and the Basic Education Officer was not attending to this matter as well as other matters before this Court. It also noted that this particular petition was being continually adjourned on account of absence of the learned counsel representing the Basic Education Officer. Today again when the matter is taken up in the revised call, learned counsel representing the respondents 2 and 3 has not appeared. Consequently, the learned Standing Counsel is directed to transmit a copy of this order to the Secretary of the Board forthwith, who shall initiate appropriate action against the counsel and report compliance on this petition within a period of two weeks from today.
This petition has challenged the order of 5 October 2018 rejecting the claim of the petitioner for being permitted to be counselled and for consequential appointment as an Assistant Teacher. A challenge is also laid to the Circular of 13 December 2017 insofar as it restricts the right of candidates to participate in further rounds of counselling only to those who had appeared in the first and second rounds of counselling conducted. The petitioner, undisputedly, participated in the selection process. Initially, he appears to have been restrained from participating in the selection process since he did not produce a No Object Certificate from his employer. This constrained the petitioner to institute Writ -A No. 39058 of 20161. On the said petition, an interim order was passed on 23 August 2016 to the following effect:
“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.”
It however transpires that since counselling was to take place on the next date fixed, the petitioner was not permitted to participate in the same since the order of the Court was not transmitted before the counselling came to an end. The respondents in the Counter Affidavit however disclose that in light of the orders passed in favour of the petitioners and others, an additional round of counselling was undertaken in which the names of 25 other Shiksha Mitra who had been also removed from the merit list of the first counselling were reconsidered. The petitioner however was not counselled. This led to the filing of another writ petition being Writ -A No. 11414 of 20182. That petition was disposed of on 8 May 2018 in the following terms:
“Reasons may vary but the situation is similar here also. Petitioner, admittedly, has applied for appointment against the posts in question and possess requisite qualification. He was not permitted to participate in the counselling as No Objection Certificate was not issued to him. It may be that petitioner pursued his candidature dis-interestingly, as he was already absorbed as Assistant Teacher, but in the changed circumstances he ought not to be penalized for it. The Hon'ble Supreme Court in para 26 has been pleased to acknowledge equity arising in his favour and he has been given opportunity to face open competition. In the present case also, if a direction is issued to consider petitioner's candidature against vacant posts, on the basis of petitioner's merit, no prejudice would be caused to paramount public interest. In the process no rule of law would be violated and equity would also be adjusted. Vacant posts are otherwise required to be filled so as to meet the requirement of free education to children aged between 8 to 14 years.
Principal DIET has not examined the claim of the petitioner in correct perspective, inasmuch as petitioner ought no to be made
1 Sandeep Kumar Chaurasiya And 6 Others Vs. State of U.P. And 3 Others
2 Vinay Kumar Pandey Vs. State of U.P. And 3 Others to suffer for the reasons beyond his control.
In such circumstance, action of the Principal DIET in refusing to entertain petitioner's candidature for the reasons recorded therein,cannot be sustained.The order dated 23.4.2018 stands quashed. Authority concerned shall take a fresh decision, keeping in view the observations made above within two monthsfrom the date of filing certified copy of this order before the Principal DIET.
With the aforesaid observation, writ petition stands disposed of.”
Despite this order and since the same was not complied with, the petitioner instituted proceedings in contempt. It is only thereafter that the impugned order of 5 October 2018 has come to be passed. In the impugned the respondents again refer to the Circular of 13 December 2017 to contend that the petitioner could not be permitted in the counselling since he had not appeared in the first and second rounds as conducted by them.
In the considered view of this Court, the stand so taken cannot possibly be sustained since undisputedly despite directions having been issued on two earlier occasions the petitioner was not counselled.
Regard must also had to the fact that in the first round of counselling it was a condition imposed by the respondents themselves which led to the petitioner being ousted. That condition was not found to be tenable at least prima facie by the learned Judge who passed interim directions on 23 August 2016. In that view of the matter and in the considered view of this Court, the Circular of 13 December 2017 cannot possibly come in the way. The Court further notes that undisputedly the last cut off relevant to the category of the petitioner was 59.8 quality point marks. The respondents do not dispute that the petitioner obtained 67.54 quality point marks. Despite the above the case of the petitioner has not been favourably considered. On an overall conspectus of the aforesaid facts, this Court finds itself unable to sustain the order impugned.
The petition is accordingly allowed . The impugned order of 5 October 2018 is hereby quashed. The fourth respondent is hereby commanded to undertake the requisite counselling of the petitioner and his consequential appointment as an Assistant Teacher in District Maharajganj. The Court further provides that in case there be no existing vacancy in District Maharajganj, the second respondent shall consider the claim of the petitioner afresh and in light of the observations made hereinabove and pass consequential orders for the appointment of the petitioner in any other district bearing in mind the preferences if any which may have been exercised by him and subject to the merit position as obtaining. This exercise of consideration shall be concluded by the respondents within a period of two months from today and a final decision communicated thereafter.
Order Date :- 30.5.2019 Arun K. Singh ( Yashwant Varma, J.)