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2015 DIGILAW 192 (ALL)

SARITA SHUKLA v. STATE OF U. P.

2015-01-30

VIVEK KUMAR BIRLA

body2015
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard learned counsel for the petitioner, Sri V.K. Srivastava, learned counsel appearing on behalf of respondent Nos. 3 and 4 and learned Standing Counsel for respondent Nos. 1, 2 and 5. The present petition has been filed challenging the final select list dated 19.1.2015 with regard to selection for the post of Assistant Teacher in the Institution run by the Basic Education Board, Uttar Pradesh. The petitioner has also prayed for quashing the Clause 8 (Ga) of the advertisement dated 30.11.2011 as amended by advertisement dated 20.12.2011 issued by all the District Basic Education Officers in so far as it relates to the procedure of selection in selecting 50% of the candidates from the Arts group while 50% of the candidates with Science group of the total vacancy of the Assistant Teachers in Junior Basic Schools. A further prayer has also been made to fill up the vacancy in accordance with the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred as Rules, 1981). 2. The submission of the learned counsel for the petitioner is that in pursuance of the advertisement, the petitioner fulfills all the essential educational qualifications and training eligibility for appointment on the post of Assistant Teacher in Junior Basic Schools, as she is a B.Sc degree holder and also fulfills other relevant eligibility criteria. The submission of the counsel for the petitioner is that in the Final Select List dated 19.1.2015, candidates in Arts group having less than 118 marks in Teacher Test Eligibility (TET) have been selected and whereas the petitioner who has also obtained 118 marks in TET, has not been selected and, therefore, it is a case of discrimination and is thus, violative of Article 14 of the Constitution of India. The counsel for the petitioner submitted that the Clause 8(Ga) of the advertisement which provides that 50% candidates will be taken from Arts group and 50% candidates will be taken from Science group, is violative of Article 14 of the Constitution of India and is discriminatory in nature and inasmuch as the other candidates in Arts group who have obtained less than 118 marks in TET have been selected whereas the petitioner has been left out. Drawing attention to Rule 8 of the Rules 1981, he further submitted that once the academic qualification is same i.e. graduation, irrespective of discipline i.e. Science or Arts, for all the candidates and all of them have attempted the same paper in TET, dividing source of recruitment in two category i.e. Science and Arts group by taking 50% from each category, is discriminatory. 3. Per contra, learned Standing Counsel appearing for the respondents has submitted that the time bound selection procedure had taken place as per direction of Hon’ble Apex Court dated 17.12.2014 on SLP No. 4347-4375 of 2014 and the petitioner had been provided full opportunity to appear in the counselling; and that she was very much aware of Clause 8(Ga) of the advertisement which provides 50% selection from the Arts group and 50% selection from the Science group before appearing in counselling and, therefore, now it is not open to the petitioner to challenge the select list, which has been finalised after consideration of the marks obtained by the petitioner and other candidates, who have also participated in the counselling. He submitted that after the petitioner had appeared in counselling with full knowledge of the terms of the advertisement, it is not open to her to challenge the same. He, thus, submitted that the petition is devoid of merit and is liable to be dismissed on this ground alone. 4. I have considered the rival submissions of the parties. In my view, from the submission made by the learned counsel for the petitioner and on perusal of record, it leaves no room to doubt that the petitioner was very much aware of Clause 8 (Ga) of the advertisement which provides for 50% selection from Arts group and 50% selection from Science group and she had also participated in the counselling. Further, Rule 8 of the Rules 1981 only relates to academic qualifications, which is referable to Clause 1 of the advertisement, which provides for academic qualification and training eligibility. Rule 8 of the Rules 1981 is not referable to Clause 8(Ga) of the advertisement, which provides as to how posts are to be fulfilled from two categories, namely, Arts group and Science group (50% each in the present case). Rule 8 of the Rules 1981 is not referable to Clause 8(Ga) of the advertisement, which provides as to how posts are to be fulfilled from two categories, namely, Arts group and Science group (50% each in the present case). Further, there is no averment in the petition and the counsel for the petitioner also failed to point out that any person securing less than 118 marks has been selected in 50% category wise quota of Science group. It is very much apparent that it was made known through Clause 8(Ga) of the advertisement and the petitioner was aware or say, all such candidate falling in one group (i.e. Arts or Science group) were aware that for selection purposes their marks will be compared in that particular group only. As such, it cannot be said that the petitioner has been discriminated in her category. Counsel for the petitioner also failed to prove, either from record or by his submissions, as to how this categorisation in Arts group and Science group is bad or is hit by Article 14 of the Constitution of India. 5. This Court is also of the opinion that now after having participated in the counselling, it is not open to the petitioner to challenge the terms of the advertisement and the selection procedure, of which she was fully aware. A reference may be made to a decision of the Hon’ble Apex Court in the case of Amlan Jyoti Borooah v. State of Assam and others, (2009) 3 SCC 227 , paragraph 32 of which is quoted below: “Appellant, in our opinion, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, in our considered opinion, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and precluded from doing so.” 6. This case stands on a even better footing inasmuch as there was no change in the selection procedure in the present case. Reference may also be made to various other decisions of Hon’ble Apex Court in H.V. Nirmala v. Karnataka State Financial Corporation, (2008) 7 SCC 639 ; Sadananda Halo v. Mumtaz Ali Sheikh, (2008) 4 SCC 619 (para 59); Union of India v. S. Vinodh Kumar and others, (2007) 8 SCC 100 (para 18) and Union of India v. Chandrasekaran, (1998) (3) SCC 694. In view of the aforesaid discussion, I do not find any merit in this petition and the same is, accordingly, dismissed. ——————