JUDGMENT Hon’ble Sudhir Agarwal, J.—Shri Shailendra, Advocate, for the petitioners, Sri S.G. Hasnain, Learned Additional Advocate General, Sri R.N. Singh, Senior Advocate and Sri K.S. Kushwaha, Learned Standing Counsel had appeared on behalf of the respondents. 2. Sri Hasnain stated that Sri R.N. Singh has been authorised to represent all the respondents in this case. He further stated that since leaned Advocate General is not present on account of his pre-occupation in Lucknow, if after hearing Sri R.N. Singh, who has been authorised to appear on behalf of all the respondents, the Court still wants his assistance, he may appear on some other day. Sri Anil Sant, Secretary, Basic Education, Sri D.C. Kannaujia, Director (SCERT) and Basic Education and Sri I.P. Sharma, Secretary Basic Education Board, in pursuance of this Court’s order dated 18.1.2011 are present. 3. This is a simple matter but uncertain contradictory stand taken by the respondents has made it complicated. Sri Shailendra, learned counsel for the petitioners, in brief, stated that Special BTC course is a training which makes a person eligible for appointment to the post of Assitant Teacher in a primary School. Mere passing of the training course does not mean automatic appointment. For the purpose of appointment, respondents have to follow the procedure prescribed under 1981 Rules but the same has not been done as a result thereof some of the candidates who had passed BTC or other training course have not been able to apply or being considered for appointment on the post of Assistant Teacher in primary schools maintained by Board of Basic Education. 4. On this aspect an affidavit was filed on behalf of the respondents taking a stand that every year about 12000 teachers in primary schools retire, though availability of trained teachers is only half of this figure and it is for the reason, without undergoing any formal procedure of recruitment under 1981 Rules, all the persons who simply passed training course of special BTC, were immediately issued appointment letters. This stand was not supported with the record This Court, therefore, on 17.12.2009 passed the following order. “This case was adjourned on the request of Sri K.S. Kushwaha, learned Standing Counsel on 14.12.2009 on the ground that he is not prepared with the matter and sought time to prepare the matter since Sri Shalilendra, learned Counsel for the petitioner has already concluded his argument. “This case was adjourned on the request of Sri K.S. Kushwaha, learned Standing Counsel on 14.12.2009 on the ground that he is not prepared with the matter and sought time to prepare the matter since Sri Shalilendra, learned Counsel for the petitioner has already concluded his argument. Today, before he starts his submission, a supplementary counter affidavit sworn by Sri I.P. Sharma, Secretary, U.P. Board of Basic Education, Allahabad on 17.12.2009 at 10.00 a.m has been filed containing certain factual informations based on record particularly from para 6 to 14 but no documents have been placed on record in support of such averments. Neither the relevant Government Orders creating 1,25,000 post of Assistant Teacher in Primary School pursuant to the schemes launched in 1993, 1997 and 2000 referred to in para 5 have been placed on record nor there is anything to show that every year 12,000 Assistant Teachers retires. Details of the cases in which regular BTC selection is claimed to have been stayed as mentioned in para 8 is also not given. Similar is the position in respect to other averments contained in the aforesaid affidavit. In the circumstances, Sri Kushwaha, learned Standing Counsel is directed to produce relevant record in support of the averments which have been made in the supplementary counter affidavit filed today in the Court on the next date positively. Besides, Secretary, Basic Education is also directed to file an affidavit giving details of the number of seats of BTC in various District Institutes of Education and Training in the State of U.P., the number of admissions, if any, made in the last ten years, numbers of candidates passed therein and the manner in which they have been appointed, if so, The above affidavit shall be filed by the respondent No. 1 within three weeks. List this matter for further hearing on 11.1.2010. This order shall be communicated to the concerned respondents by the learned Standing Counsel, Sri Kushwaha, who shall be made available certified copy of this order within 48 hours by the Registry. Sri Kushwaha submitted that due to non availability of order within time, he could not deposit the cost. He prays for and is allowed three days’ further time to comply with the order dated 14.12.2009 with respect to deposit of cost. “ 5. Sri Kushwaha submitted that due to non availability of order within time, he could not deposit the cost. He prays for and is allowed three days’ further time to comply with the order dated 14.12.2009 with respect to deposit of cost. “ 5. This matter came up then on 25.1.2010, when on joint request, it was adjourned to 28.1.2010 on which date the matter was heard and judgment was reserved. 6. However, the judgment could not be prepared. The reason being that I having been already nominated in the Special Bench hearing Ayodhya matter at Lucknow, day today hearing in that matter commenced on 11.1.2010 and except on few dates, when the Special Bench did not sit at Lucknow, while holding Court at Allahabad, I heard and decided the cases, but otherwise I remained throughout at Lucknow. During summer vacations, I tried to prepare the judgment, when noticed that information placed on record by the respondents was scatchy and needed explanation on various aspects. 7. Petitioners in the writ petition No. 57595 of 2007 claim to be eligible for appointment to the post of Assistant Teacher having obtained special BTC training had sought the following reliefs : “(1) issue a writ, order or direction in the nature of certiorari calling the record of appointments of Assistant Teachers in UP Basic Institutions as those who completed Special B.T.C. Course 2004 as result declared on 28.10.2005 (Annexure No. 5 to this writ petition) after completion of training and given straightway appointment by order impugned dated 28.10.2005 without following the procedure of Rules of 1981 and quashing the same. (2) issue a writ, order or direction in the nature of certiorari calling the record the case and quashing the Government Orders dated 10.7.2007, 13.7.2007 and 15.7.2007 (Annexure No. 1, 1-A and 1-B to the writ petition) and advertisement dated 18.7.2007 (Annexure No. 1-C to the writ petition) and impugned provisional select list dated 15.11.2007, published in Dainik Jagran Hindi news daily on 16.11.2007 (Annexure No. 16 to this writ petition) to the extent they have not followed rules of 1981 for making appointment on the post of Assistant Teacher in Uttar Pradesh Board of Basic Education. (3) issue a writ, order or direction in the nature of mandamus directing the respondent authorities to amend the aforesaid Government Orders and advertisement to the extent for making appointment and providing benefit of Rules 14 (4) of the Rules of 1981 (Year-wise selection) at the stage when the counselling for special B.T.C Course 2007 is scheduled and to recognize the persons having B.Ed. degree together with Special B.T.C. Course as a separate degree equivalent to regular B.T.C Degree holders rather recognizing special B.T.C. Course which is contrary to Rule 8 of the Rules of 1981 and then to apply the Rules of appointment at the stage of selection for special B.T.C. Course. (4) issue a writ, order or direction in the nature of mandamus directing the respondents authorities to follow rules of selection as per judgment of this Hon’ble Court in Anant Kumar Tiwari and others v. State of U.P. and others, 2002 (2) UPLBEC 1327 and State of U.P. v. Anant Kumar Tiwari and others, 2003 (3) AWC 2060 and judgment of Hon’ble Supreme Court in Rajesh Kumar Gupta and others v. State of U.P. and others, (2005) 5 SCC 172 .” 8. In the context of above matter I find that the matter requires further investigation and hearing. I, thus, directed for listing for further hearing. The Court passed the following order on 16.8.2010 : “The judgment in this case was reserved but due to my engagement in final hearing in the matter pertaining to Ayodhya dispute at Lucknow where hearing was going on continuously on day to day basis the judgment could not prepared immediately and within a reasonable time after the same was reserved. When after some time, I tired to dictate the judgment it was found that certain information was further needed and, therefore, in my view, it would in the interest of parties that the matter be heard again. List this matter for further hearing.” 9. Thereafter the case was listed before this Court on 21.10.2010. When Sri K.S. Kushwaha was confronted with such gaps in the reply filed by the respondents, he being not in a position to reply, sought time to file supplementary counter affidavit and consequently on 21.10.2010 this Court passed the following order: “Heard Sri Shailendra, learned counsel for the petitioner and Sri K.S. Kushwaha, learned Standing Counsel for the respondents. When Sri K.S. Kushwaha was confronted with such gaps in the reply filed by the respondents, he being not in a position to reply, sought time to file supplementary counter affidavit and consequently on 21.10.2010 this Court passed the following order: “Heard Sri Shailendra, learned counsel for the petitioner and Sri K.S. Kushwaha, learned Standing Counsel for the respondents. Sri Kushwaha prayed for and is granted two weeks’ and no more time to file supplementary counter affidavit placing on record the details of the vacancies of Assistant Teacher in different levels of Primary Schools separately, the vacancies occurred yearly in the last 15 years, the manner the same were filled in at different point of time and other relevant details. List this matter on 15.11.2010. A copy of this order shall be made available to learned Standing Counsel for information and compliance.” 10. The matter thereafter came up before this Court on 18.1.2011, when Sri Kushwaha did not appear, and, instead, Sri R.N. Singh, Senior Advocate appeared. He stated that he was representing respondent No. 4 only. No other counsel appeared on behalf of the respondents. The learned Standing Counsel present in the Court was not in a position to give any reply. Sri R.N. Singh stated that he had no further information and when required to clarify certain things, mentioned in the supplementary affidavit and counter affidavit. He said that whatever information he possessed, has been submitted and may be considered by the Court. In the circumstances, this Court passed the following order on 18.1.2011 : “1. By order dated 21st October, 2010, learned Standing Counsel Sri K.S. Kushwaha on his request was allowed time to file supplementary counter affidavit giving certain details as under: “Sri Kushwaha prays for and is granted two weeks’ and no more time to file supplementary counter affidavit placing on record the details of the vacancies of Assistant Teacher in different levels of primary schools separately, the vacancies occurred yearly in the last 15 years, the manner the same were filled in at different point of time and other relevant details.” 2. An affidavit has been filed annexing a chart as S.C.A.-1 which gives total number of posts created in Basic Education Project, District Primary Education Programme and Sarv Shiksha Abhiyan since 1994 till 2009. 3. An affidavit has been filed annexing a chart as S.C.A.-1 which gives total number of posts created in Basic Education Project, District Primary Education Programme and Sarv Shiksha Abhiyan since 1994 till 2009. 3. Sri R.N.Singh, learned Senior Advocate has appeared on behalf of respondent No. 4 and submits that besides it, respondent No. 4 does not possess any other information. On behalf of respondent Nos. 1 to 3 no reply has been filed though Sri Kushwaha, learned Counsel had appeared for all the respondents. Sri R.N. Singh also could not give the detailed information deriving from S.C.A. 1, as desired by this Court in its order dated 21st October, 2010 and says that whatever information respondent No. 4 possess, the same has been submitted in the earlier various affidavits filed by the authorities. They have taken different stand and at one stage it has been said that every year 10000 vacancies of teachers in Primary Schools fall vacant but when they were required to show from where they have got this information, nothing has been brought on record. 4. In view thereof, I direct respondent Nos. 1 to 4 to be present before this Court on 2nd February, 2011 to explain as to how different stand has been taken in the case in hand and why the information, as desired by order dated 21st October, 2011, has not been furnished. They shall also mention therein that in case there is no such information, then how the payment of salary to teachers working in various Primary Schools maintained by Basic Education Board as well as those, who are receiving grant-in-aid is being made. They shall also give information of number of Primary Schools from Class 1 to 8 established in various part of the State, the Schools which are receiving grant-in-aid, number of posts of teaching and non-teaching staffs created therein and the amount being paid to such staff from the State Exchequer. They shall also give details of budgetary sanction for payment of salary to the teaching and non-teaching staffs of primary schools in the State of U.P. All these details of preceding 10 years shall be supplied by the respondents by the next date. 5. List on 2nd February, 2011. 6. On the next date, the learned Advocate General is also requested to assist this Court on behalf of respondent Nos. 5. List on 2nd February, 2011. 6. On the next date, the learned Advocate General is also requested to assist this Court on behalf of respondent Nos. 1 to 3 since prima facie it appears to this Court that official respondents are guilty of filing false affidavits taking varying stand in the matter. 7. Copy of this order will be made available to the learned Chief Standing Counsel and Sri R.N. Singh assisted by Sri K.S. Kushwaha for information and compliance.” 11. Today an affidavit titled as “supplementary affidavit” on behalf of the respondents, sworn by Sri I.P. Sharma, Secretary Basic Education Board , Allahabad has been filed. During argument, when enquired that in 2004 and 2005 when number of vacancies was 200 and odd, how they can make appointment without following 1981 Rules, Sri R.N. Singh stated that whatever has been said by the respondents, it is on the record and it is the duty of the Court to consider and decide since the judgment has to be written by the Court. He also stated that respondents have taken certain preliminary objections in the counter affidavit and without deciding the same the respondents cannot be called upon to answer on merits of the issue. He placed reliance on the Apex Court’s judgment reported in AIR 1977 SCC 196 and 2006(11) SCC 696 . When pointed out that the objections taken as preliminary infact relates to the very merit of the matter and the contention of the petitioners is basically about the observance of the statutory rules for appointment to the post of Assistant Teacher, hence the entire thing has to be answered and decided at the same time, he said that once a reply in writing has been given, it is for the Court to read and consider the same and counsel cannot be required to refer and place it before the Court. He also took exception to the fact that this Court reserved the judgment in the matter in January, 2010 and after more than seven months directed for listing of the case for further hearing instead of deciding the same, though the matter should have been released and sent to Hon’ble Chief Justice for listing before another Bench. 12. He also took exception to the fact that this Court reserved the judgment in the matter in January, 2010 and after more than seven months directed for listing of the case for further hearing instead of deciding the same, though the matter should have been released and sent to Hon’ble Chief Justice for listing before another Bench. 12. He was reminded that it is always permissible to the Court, even after reserving the judgment, to list the case for further hearing in case some further clarification is needed, he stated when the Judge himself has been representing the State before elevation, he knows all the intricacies of the department and therefore, such matters need be heard by another Bench and should be released. 13. This Court when tried to proceed with the matter and made certain queries from the counsel about the stand taken in the supplementary and counter affidavits, Sri R.N. Singh intervened and stated that learned counsel ought not be required to read it but the Court itself should go through it while dictating the judgment. This Court tried to inquire from the officers present in the Court regarding certain factual aspects but Sri Anil Sant, Secretary, Basic Education, U.P. made statement that stand in the affidavit, may be seen and he does not want to say anything further. 14. The above attitude clearly shows an attempt of bullishness on the part of the learned counsels appearing for the respondents to hinder hearing and to create a situation so that the matter may not be heard by this Court; may be for the reason that they felt some inconvenience for certain queries made by the Court regarding the defence taken by the respondents in making appointments of the thousands of teachers in Primary Schools in the last ten years without undergoing the process of Recruitment Rules 1981. 15. Of late this Court is experiencing a trend developed in the Bar, whenever find inconvenience, for one or the other reason, an attempt of bullishness in one or the other manner is resorted so as to create a situation where the Judge should release the matter and they may have an opportunity of arguing the case before another Bench. This is another kind Bench hunting tactics which has been castigated time and again. This is another kind Bench hunting tactics which has been castigated time and again. This Court has the confidence and strength still to proceed with the matter without being impressed by such attempt on the part of the respondents, but unfortunately, some observation by the higher Court recently have shaken confidence of even strongest and straightforward Judges of this Court. The cases are being released on mere fall of the hat so that there may not be any occasion for such comments. These unfortunate comments have caused serious erosion in the confidence of the Judges since they cannot defend themselves having no such platform. It is too easy to condemn without naming the individual. When entire institution is condemned this situation is bound to happen. 16. In the circumstances I find it appropriate to recuse myself. Let this matter be placed before Hon’ble the Chief Justice for nominating another Bench. —————