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2016 DIGILAW 2649 (ALL)

Sushil Kumar v. State of U. P.

2016-08-01

ARUN TANDON, SUNITA AGARWAL

body2016
JUDGMENT Sri K.S. Kushwaha, learned counsel for the appellants has made a statement at the Bar that the appellants/writ petitioners are not petitioners in Writ Petition No. 3553 of 2009 (Pravesh Kumar & others v. State of U.P. & others) as well as in Writ Petition No. 8685 of 2007 (Vikas Kumar Yadav & others v. State of U.P. & others) which have been dismissed by this Court vide judgment and order dated 13.10.2009 and the order whereof stands affirmed with the dismissal of the Special Appeal No. 1772 of 2009 connected with Special Appeal No. 1773 of 2009 on 7.12.2009. 2. The controversy is regarding recruitment as Assistant Teacher in Basic Schools. The State Government had moved an application before the National Council for Teachers Education ( in short 'NCTE') for conducting Special BTC Training Course, 2007 for 60,000 seats in respect of candidates who possessed B.Ed. degree. Such training was to be imparted for the purpose of appointment as Assistant Teachers in primary institutions run by Basic Shiksha Parishad, U.P., the appointment whereof is regulated by the U.P. Basic Education Teachers Service Rules, 1981. The permission for such training was granted by NCTE to the State Government vide letter dated 27th June, 2007. This led to the publication of the notification dated 10th July, 2007 calling upon the candidates who were already B.Ed for admission to Special B.T.C. Training Course in various schools and Education training so that they may be appointed as Assistant Teachers in Basic institutions run by Basis Shiksha Parishad under the Rules, 1981, which provide amongst other the essential qualification of teachers training for appointment as Assistant Teachers in Parishadiya Vidhyalaya. 3. It appears that the petitioners who belong to Other Backward Class Category applied in pursuance thereof. The records disclosed that the result of the selections were declared and thereafter counselling for the purpose of admission to the Special Training Course was undertaken and this counselling continued for 7th round still the petitioner were not selected. The seats within the quota for Other Backward Caste class remain vacant. 4. The State Government is stated to have made application to the NCTE for permission to impart training to additional 28,385 candidates who were B.Ed but had not obtained the certificate of Basic Training Certificate (BTC) and JTC etc. 5. The NCTE is stated to have granted the permission vide order dated 20.9.2007. 4. The State Government is stated to have made application to the NCTE for permission to impart training to additional 28,385 candidates who were B.Ed but had not obtained the certificate of Basic Training Certificate (BTC) and JTC etc. 5. The NCTE is stated to have granted the permission vide order dated 20.9.2007. This led to a fresh training programme by the State Government dated 14.11.2008 inviting fresh applications from the candidates against these 28,385 posts giving some time to the State Government to come out with the Government Order dated 11.12.2008 whereby it decided to end the process of admission to the Special BTC Training Course-2007. 6. This led to the filing of the Writ Petition No. 3553 of 2009 and Writ Petition No. 8685 of 2007 by the persons like the present petitioners who belong to OBC category and claim that the process of admission to the training course must continue till all the vacancies which were subject matter of advertisement, are filled up within their respective quotas. 7. According the petitioners, the State should have filled all other backward categories seats and could not have resolved to invite applications through fresh advertisement published on 8.12.2008. The writ petition was dismissed by means of the judgment and order dated 13.10.2009 and the Court held after following the judgment of the Apex Court in the cases of State of Haryana v. Subhash Chander Marwaha reported in 1973 AIR SC 2216 and State of U.P. & others v. Rajkumar Sharma & others reported in 2006 (3) SCC 330 , wherein it have been held that mere participation or inclusion of the name in the select list confer no right upon the candidates concerned even if some of the vacancies are left unfilled by the State Government. The other backward class category candidates were not satisfied, therefore, they filed Special Appeal No. 1772 of 2009 and Special Appeal No. 1773 of 2009. Both the appeals were dismissed by judgment of the Division Bench of this Court. 8. By means of the judgment and order of the Division Bench dated 7.12.2009, the Court had resolved the controversy regarding six petitioners which was subject matter of advertisement pertaining to Special BTC Course 2007. 9. Both the appeals were dismissed by judgment of the Division Bench of this Court. 8. By means of the judgment and order of the Division Bench dated 7.12.2009, the Court had resolved the controversy regarding six petitioners which was subject matter of advertisement pertaining to Special BTC Course 2007. 9. The petitioners, however, wanted to reck up the issue again, therefore, after more than four years subsequent to the order of the State Government for BTC Training Course-2007, the Writ Petition Nos. 10124 of 2012, 7251 of 2012 and 57955 of 2012 were filed and three years, thereafter, two Writ Petition Nos. 52265 of 2015 and 58096 of 2015 were filed with the following reliefs which read as under: - “(i) a writ, order or direction of suitable nature commanding the respondents to forthwith implement the order of the State Backward Class commission, U.P. dated 21.12.2010 within a period to be specified by this Hon'ble Court. (ii) a writ, order or direction of suitable nature commanding the respondents to fill up the seats earmarked for Special B.T.C. Training Course, 2007 in pursuance of Government Order dated 10.07.2007 for 27% reservation for other backward class from amongst candidates who had applied for consideration therein including the petitioners within a period to be specified by this Hon'ble Court. (iii) a writ, order or direction in the nature of certiorari quashing the Government Order dated 11.12.2008 (Annexure no.15 to the writ petition) and/or to command the respondents to complete the proceedings as prayed for above ignoring the aforesaid Government Order.” 10. These petitions came to be dismissed by the judgment and order dated 24.4.2014 passed by the learned Single Judge considering the Division Bench judgment and orders dated 13.10.2009 and dated 7.12.2009 as referred above. 11. The petitioners filed the Special Appeal against the judgment of the learned Single Judge. 12. The Division Bench of this Court disposed of the Special Appeal by means of the order dated 15.10.2014 which is as follows: - "This special appeal arises from a judgment and order of the learned Single Judge dated 24 April 2014. 11. The petitioners filed the Special Appeal against the judgment of the learned Single Judge. 12. The Division Bench of this Court disposed of the Special Appeal by means of the order dated 15.10.2014 which is as follows: - "This special appeal arises from a judgment and order of the learned Single Judge dated 24 April 2014. The judgment is extracted herein below: - "Learned counsel for the petitioner very fairly brings to the notice of this Court a judgment rendered in Special Appeal No. 1172 of 2009, wherein, all the challenge made in the present writ petition for not filling up the remaining posts of assistant teachers, in respect of which, an order was also passed by the State Backward Class Commission on 21.12.2010 have been considered and rejected. In the wake of Division Bench Judgment passed by this Court, the other relief prayed for in the writ petition can also not be granted. The Division Bench Judgment passed by this Court is binding, therefore, there is no scope for this Court to take a contrary view in the facts and circumstances of the present case. In the light of observation made herein above, the writ petition is dismissed. No order as to cost." The attention of the Court have been drawn to the fact that before the learned Single Judge, the reliefs which were claimed by the appellants are as follows: - "i. a writ, order or direction of suitable nature commanding the respondents to forthwith implement the order of the State Backward Class Commission, U.P. dated 21.12.2010 within a period to be specified by this Hon'ble Court. ii. a writ, order or direction of suitable nature commanding the respondents to fill up the seats earmarked for Special B.T.C. Training Course, 2007 in pursuance to Government Order dated 10.7.2007 for 27% reservation for other backward class from amongst candidates who had applied for consideration therein including the petitioners within a period to be specified by this Hon'ble Court." The learned Single Judge has proceeded on the basis that the learned counsel appearing on behalf of the appellants had 'very fairly' brought to the notice of the Court a judgment of a Division Bench rendered in Special Appeal No.1172 of 2009 where a similar controversy had been considered. As a matter of fact, the counter which was filed on behalf of the State would indicate that the judgment of the Division Bench was relied upon by the State. The order of the learned Single Judge, thus, proceeds on the basis of an erroneous premise that the judgment of the Division Bench was relied upon by the appellants and that the appellants had accepted that the judgment covered the controversy in the case. We are of the view that it is necessary for the learned Single Judge to independently examine as to whether the issues which were raised in the writ petition would stand covered by the judgment of the Division Bench. The learned Single Judge not having done so, we find merit in the special appeal. For these reasons, we allow the special appeal and set aside the impugned judgment and order dated 24 April 2014. Writ-A No. 10124 of 2012 is restored for disposal afresh to the file of the learned Single Judge. However, we keep open all the rights and contentions of the parties including in regard to the applicability of the judgment of the Division Bench noted above. The petitioner would be at liberty to move the learned Single Judge for expeditious hearing of the writ proceedings. The appeal is, accordingly, allowed. There shall be no order as to costs." 13. Accordingly all the writ petitions are again listed before the learned Single Judge. Under the order impugned after taking note of the contentions raised on behalf of the petitioners, it was held that the controversy stood settled under the two judgments of the Division Bench which are binding upon the learned Single Judge and the writ petitions were dismissed. 14. Against the order of the learned Single Judge, the present special appeal have been filed as already noted above. 15. Initially Sri K.S. Kushwaha, learned counsel for the petitioner made a statement at the Bar that the petitioners in all the aforesaid five writ petitions were not the same petitioners who approached this Court earlier by means of the Writ Petition No. 3553 of 2009 as well as Writ Petition No. 8685 of 2007 but while we were dictating the order, the counsel suggested that his statement is confined to the petitioners in Writ Petition No. 10124 of 2012. He submits that he was not counsel in other petitions and, therefore, cannot make a statement with reference to other connected petitions. 16. We may at the very outset record that there is no such factual averment either in the writ petition or in the present special appeal regarding the present petitioners being party in the earlier proceedings or not. We further find that the order of the Division Bench and the order of the learned Single Judge specifically records that Sri K.S. Kushwaha has been heard on behalf of the petitioners in the matter. We leave the issue at this stage inasmuch as we may only record that if the petitioners had approached this Court by means of Writ Petition No. 3553 of 2009 and Writ Petition No. 8685 of 2007 then their specific submission for the same relief in subsequent proceedings are not entertain able. Considering these facts supplied to the Court, we may find a conclusion that this practise of not disclosing the fact in the present special appeal of approaching the Court in the earlier writ petition is not approved by this Court. 17. More fairness is expected from the petitioners as well as the counsel who represented them. Statement of fact should not be at the Bar without any pleading being made in the petition or in the special appeal. 18. However, on the merits of the case, we find that what is sought to be suggested for reopening the settled controversy after five years is that under the U.P. Act No. 4 of 1994 Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, there is a provision for carry forward of the vacancies/posts belonging reserved category which remain unfilled, reference is made to Section 4 of the Act. While under the U.P. Act no. 23 of 2006, which pertains to admission in the educational institutions, there is no such provision for carry forward of the vacancies/seats. We fail to understand as to how this contention benefited the petitioners specifically in view of the fact that this Court has upheld the decision of the State Government to close the proceeding of Special BTC Selection 2007 as early as in the year 2008. We fail to understand as to how this contention benefited the petitioners specifically in view of the fact that this Court has upheld the decision of the State Government to close the proceeding of Special BTC Selection 2007 as early as in the year 2008. It is not the case for carry forward of the vacancies itself rather fresh advertisement has been made by the State Government after obtaining permission from the NCTE in the year 2008. The writ petition appears to be an attempt to overreach the conclusive decision of the Apex Court that mere selection or inclusion in the name of the select list confers no right even if certain vacancies/posts remain vacant and, therefore, is an abuse of the process of the Court. 19. Although in the writ petition, a prayer has been made to quash the order of the Backward Commission. A query has been made by this Court as to under which provisions the Backward Commission can issue direction to the State Government to admit the candidates for training course and for appointment as Assistant Teachers, no reply could be given by the learned counsel for the appellant/petitioners. On the contrary we hold that the Backward Commission has no such power to issue any direction to the State Government. The question as to how the petitioners could maintain the writ petition for implementation of the directions of the Backward Commission cannot be ascertained by this Court. 20. We, therefore, dismiss the present appeal with costs which we quantify to Rs. 50,000/-. Appeal dismissed.