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2013 DIGILAW 294 (UTT)

TRIVENI CHANDRA PANDEY v. STATE OF UTTARAKHAND

2013-06-10

C.Pant, Servesh Kumar Gupta

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JUDGMENT Hon’ble Prafulla C. Pant, J. (Oral) This appeal, preferred under Chapter VIII Rule-5 of the Rules of Court, 1952, is directed against the judgment and order dated 08.05.2012 passed by a learned Single Judge of this Court in a bunch of petitions, including writ petition no.1898 of 2011 (S/S) with Writ Petition No.1888 of 2011 (S/S), Anil Chandra Pandey & others Vs. State of Uttarakhand & another. 2. Heard learned counsel for the parties and perused the papers on record. 3. The present appellant is the writ petitioner no.1 of writ petition no.1898 of 2011 (S/S). Through the said writ petition, the writ petitioners had made following prayers: - A. “Issue a writ, order or direction in the nature of mandamus directing the respondent nos.1 to 3 to consider the total number of posts of Trainee Teachers for all the applicants irrespective of their domiciliary district through one common application form: OR Issue a writ, order or direction in the nature of mandamus directing the respondents no.1 to 3 to allow them to apply for the posts advertised for each district against the vacancies earmarked for it through separate application forms for each district; B. Issue a writ, order or direction in the nature of mandamus directing the respondent no.4 to extend the deadline date of 01.01.2012, where after the persons having B. Ed. Degree would not be inducted as Primary School Teachers in Government Primary Schools; C. Issue a writ, order or direction in the nature of mandamus directing the respondent no.1 to implement the Right to Education Act, 2011 in its true spirit in the State of Uttarakhand; D. Issue a writ, order or direction in the nature of mandamus directing the respondent no.4 to ensure the implementation of guidelines issued by it; E. Issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. F. Award the cost of the present writ petition to the petitioners.” 4. Briefly stated, the writ petitioners, in the writ petition, challenged the Government Order dated 14.12.2011, whereby the advertisement dated 15.12.2011 was issued inviting applications from the eligible candidates for the posts of 2253 Trainee Teachers in the Government Primary Schools in the State of Uttarakhand. F. Award the cost of the present writ petition to the petitioners.” 4. Briefly stated, the writ petitioners, in the writ petition, challenged the Government Order dated 14.12.2011, whereby the advertisement dated 15.12.2011 was issued inviting applications from the eligible candidates for the posts of 2253 Trainee Teachers in the Government Primary Schools in the State of Uttarakhand. The grievance of the present appellant is that the requirement, that a candidate must be a domicile of the District in which he is applying to the post, is discriminatory and violative of Articles 14 and 16 of the Constitution of India. 5. Learned Single Judge, after hearing all the concerned parties, passed a detailed judgment in which it was opined that there was no discrimination, as against the writ petitioners, as the posts, required to be filled, were the district level posts. The appointing authority of the Assistant Teacher of Primary School is a district level officer i.e. District Education Officer. Learned Single Judge further took note of the fact that there was a provision to fill the vacant posts by State Counseling, provided the candidates were not found selected from the district. As such, the condition mentioned in the advertisement that the candidate must be domicile of the District, was reasonable and non-discriminatory. 6. Assailing the impugned judgment, Mr. Davesh Bishnoi, learned counsel for the petitioner/appellant submitted that the writ petitioner/appellant was deprived of his right of applying in the different districts, except district Udham Singh Nagar, of which he was the domicile. 7. In reply to the submission of learned counsel for the appellant, learned Advocate General pointed out that the appellant submitted his application for the post of Assistant Teacher in the District of U.S. Nagar and thereby submitted himself to the selection process. In this connection, attention of this Court is drawn to the observations made by the Apex 4 Court in Paragraph 9 of the judgment in the case of “Dhananjay Malik & others Vs. State of Uttaranchal & others” reported in (2008) 4 SCC Page 171, which reads as under: - “9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. State of Uttaranchal & others” reported in (2008) 4 SCC Page 171, which reads as under: - “9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.” 8. In view of the above, this Court is of the opinion that after the writ petitioner/appellant submitted himself to selection process and failed in getting selected, it is not open for him to challenge the advertisement and the selection process. 9. Mr. Manoj Tewari, learned senior advocate, appearing on behalf of interveners, drew attention of this Court towards Article 350-A of the Constitution of India, which reads as under: - “350A. Facilities for instruction in mother-tongue at primary stage.- It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities.” 10. It is argued on behalf of the respondents that in the State of Uttarakhand, there are different local languages and dialects in every district. As such, in the light of above constitutional provision, requirement of domicile of the district to impart education in primary schools, can neither be said to be discriminatory nor unreasonable. 11. We find ourselves in full agreement with the argument advanced on behalf of the respondents, as the requirement of domicile for the Assistant Teachers of the Primary Schools would make it possible for the Government to impart education to the children, knowing only local language in interior areas of the State, in furtherance of Article 21A of the Constitution of India. 12. It is also relevant to mention here that there is no violation of Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981, which governs the field, in making the advertisement. 12. It is also relevant to mention here that there is no violation of Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981, which governs the field, in making the advertisement. It is further relevant to mention here that the writ petitioner/ appellant has not challenged the vires of the Rule. Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981 reads as under: - “14. Determination of vacancies and preparation of list – (1) In respect of appointment by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior BasicSchools under clause (a) rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependents of freedom fighters and other categories under rule 9 and notify the vacancies to the Employment Exchange and in at least one newspaper having adequate circulation in the locality. (2) The appointing authority shall scrutinize the applications received and the names of the candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. (3) The Regional Assistant Director of Education (Basic) may, on the application of a candidate, and for reasons to be recorded, direct that his name be included at the bottom of the list prepared under sub-rule (2). (4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular year shall be arranged in accordance with the quality points specified in the Appendix. (5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). (6) The list prepared under sub-rule (2) and arranged in accordance with sub-rule (4) shall be forwarded by the appointing authority to the Selection Committee.” 13. (5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). (6) The list prepared under sub-rule (2) and arranged in accordance with sub-rule (4) shall be forwarded by the appointing authority to the Selection Committee.” 13. Therefore, keeping in mind the principle of law laid down in Dhananjay Malik case (Supra) r/w Article 350A of the Constitution of India and Rule 14 of the Rules of 1981, quoted above, we are of the view that the impugned judgment and order passed by learned Single Judge requires no interference. 14. For the reasons, as discussed above, this Court finds no force in this appeal, which is liable to be dismissed. The appeal is, accordingly, dismissed. Interim order dated 27.11.2012 is hereby vacated. (Misc. Application No.2231 of 2013 also stands disposed of)