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2017 DIGILAW 563 (ALL)

Arvind Kumar Singh v. State of U. P.

2017-02-16

MANOJ KUMAR GUPTA

body2017
JUDGMENT Manoj Kumar Gupta,J. Heard Shri Ashok Khare, learned senior counsel assisted by Shri V.K. Singh for the petitioners, learned standing counsel for the State-respondents and Shri B.N. Singh for the Election Commission of India. The petitioners herein applied for recruitment on the post of trainee teachers in pursuance of an advertisement dated 30.11.2011. The procedure adopted by the Board in making the selection was subject matter of challenge before this Court in large number of writ petitions on the ground that the marks obtained by the candidates in Teacher Eligibility Test should be the determining factor in making the selection. The service rules in so far as the said criteria was changed by the fifteenth amendment dated 31.8.2012 was specifically challenged. However, the petitioners therein could not succeed before the learned Single Judge and consequently, the matter was carried in special appeal. The special appeals were decided by a common judgment, the leading one being in case of Shiv Kumar Pathak and others Vs. State of U.P. and others1, wherein this Court declared Rule 14(3) of the 1981 Rules2 amended by the 15th amendment to be ultra vires. The Court held that in view of the notifications issued by N.C.T.E., which have overriding effect, the criteria for selection should be the marks obtained by the candidates in T.E.T. Examination as notified by the advertisement issued on 30.11.2011. The operative part of the judgment in Shiv Kumar Pathak (supra) is to the following effect: - "1.The Government Order dated 26.7.2011 insofar as it directs for restoration of criteria for selection as was prevalent prior to 12th amendment rules is set-aside. 2. The U.P. Basic Education (Teachers) Service Amendment Rules, 2012 (15th Amendment Rules dated 31.8.2012) in so far as Rule 14(3) is concerned is declared to be ultra vires to Article 14 of the Constitution and are struck down. Consequently, the Government Order dated 31.8.2012 as well as the communication dated 31.8.2012 issued by the board of Basic Education are set-aside. 3. Respondents are directed to proceed and conclude the selection as per the advertisement dated 30.11.2011 as modified on 20.12.2011 to its logical end within the time allowed by the Central Government vide its notification issued under Section 23(2) of the Act, 2009. 4. The judgment of the learned Single Judge is modified to the above extent. 3. Respondents are directed to proceed and conclude the selection as per the advertisement dated 30.11.2011 as modified on 20.12.2011 to its logical end within the time allowed by the Central Government vide its notification issued under Section 23(2) of the Act, 2009. 4. The judgment of the learned Single Judge is modified to the above extent. The parties shall bear their own costs." Aggrieved thereby, the State went in appeal before the Supreme Court. The appeals filed by the State Government are still pending before the Supreme Court. The Supreme Court by order dated 7.12.2015 directed as under: - At this juncture, we may state that Mr. Bhatia, learned AAG submitted that in pursuance of the direction of this Court on the earlier occasion and prior to that more than 75,000 representatives were received and after scanning the same, the State Government has found 12,091 persons eligible for being appointed subject to verification of antecedents. Let the said persons be appointed subject to the said verification within six weeks hence. (emphasis supplied) In order to ensure compliance of the order of the Supreme Court, the State Government issued an order dated 9.2.2016 directing issuance of appointment letter to the candidates found suitable. In pursuance thereof, the petitioners herein were issued appointment orders. One such order issued in respect of the first petitioner dated 9.2.2016 has been brought on record as Annexure 4 to the writ petition. The appointment order states that the appointment is on adhoc basis and would be subject to the decision in the Appeals pending before the Supreme Court. The petitioner will have to undergo training of six months in the institution assigned to him and after successful completion of training, he will be given substantive appointment. The petitioners claim that in pursuance of the appointment orders issued in their favour, they had successfully completed the training of six months. Now having completed the training, they are entitled to substantive appointments in terms of the provisional appointment order. The grievance raised in the writ petition is that the District Basic Education Officer is not issuing the formal appointment/placement order on the ground that model code of conduct issued by the Election Commission has come into force, which forbids fresh appointments. Now having completed the training, they are entitled to substantive appointments in terms of the provisional appointment order. The grievance raised in the writ petition is that the District Basic Education Officer is not issuing the formal appointment/placement order on the ground that model code of conduct issued by the Election Commission has come into force, which forbids fresh appointments. The petitioners have, therefore, preferred the instant writ petition for issuing a mandamus commanding the District Basic Education officer, Allahabad to issue formal appointment-cum-posting order in their favour. Since, the dispute pertained to the interpretation of the model code of conduct and therefore, this Court by order dated 19.1.2017 directed the petitioners to implead the Election Commission of India as a party respondent to the writ petition. The Election Commission of India has filed a short counter affidavit stating that the model code of conduct had come into force on 4.1.2017. Alongwith the counter affidavit, the letter issued by the Election Commission of India on 4.1.2017 to the concerned States, where elections are being held, prescribing the model code of conduct, has been brought on record. In paragraph 3 (vi) of the said letter it has been prescribed thus: - "(vi) From the time elections are announced by the Commission, Ministers and other authorities shall not- (a) announce any financial grants in any form or promises thereof; or (b) (except civil servants) lay foundation stones etc. of projects or schemes of any kind; or (c) make any promise of construction of roads, provision of drinking water facilities etc; or (d) make any ad-hoc appointments in Government, Public Undertakings etc. which may have the effect of influencing the voters in favour of the party in power." Shri Ashok Khare, learned senior counsel appearing on behalf of the petitioners submitted that the embargo placed by the Election Commission is on making adhoc appointments by the State Government as may influence the voters. It is submitted that the petitioners had already been granted appointment orders much before the election process commenced. It is submitted that the State Government is bound to comply with the directions issued by the Supreme Court and consequently, the prohibition contained in the model code of conduct will not apply to the case of the petitioners. It is submitted that the petitioners had already been granted appointment orders much before the election process commenced. It is submitted that the State Government is bound to comply with the directions issued by the Supreme Court and consequently, the prohibition contained in the model code of conduct will not apply to the case of the petitioners. It is sought to be submitted that the appointments were made in pursuance of the direction of the Supreme Court and thus the State Government, which is in power, is not going to derive any benefit out of it. Shri B. N. Singh, learned counsel appearing on the behalf of Election Commission of India submitted that the guidelines issued by the Election Commission have been placed before this Court and it is for this Court to interpret the same as to whether it would apply to the facts of the instant case or not. Shri Prabhakar Awasthi has filed an application seeking impleadment on behalf of certain unsuccessful candidates. He submitted that the applicants could not be granted appointment, as certain appointment letters have been issued without verification of the antecedents, as directed by the Apex Court. He has placed on record the order of the Supreme Court dated 17.12.2014 in the case of Shiv Kumar Pathak (supra), whereby the Supreme Court modified the order passed by it on 25 March 2014. The order dated 25.3.2014 was to the following effect: - "Leave granted. Hearing expedited. By this interim order, we direct the State of Uttar Pradesh to fill up the vacancies of Assistant Teachers in the schools pursuant to the advertisement issued on 30.11.2011 as per the directions issued by the Division Bench of Allahabad High Court in the case of Shiv Kumar Pathak and others (Special Appeal (Defective) No. 237 of 2013) and connected matter as expeditiously as possible at any rate within 12 weeks' time from today. Further, the State in the letter of appointment that will be issued to the successful candidates shall mention that their appointment is subject to the result of the civil appeals that are pending before this Court. The appointee(s) shall not claim any equities at the time of final disposal of the civil appeals. Further, the State in the letter of appointment that will be issued to the successful candidates shall mention that their appointment is subject to the result of the civil appeals that are pending before this Court. The appointee(s) shall not claim any equities at the time of final disposal of the civil appeals. All actions/proceedings of the State Government will be subject to the final result of these civil appeals." The modification made by the Supreme Court by the subsequent order dated 17.12.2014 provided as under: - "Despite the aforesaid order, the State has not carried out the appointment process. After hearing the learned counsel for the parties at length on various occasions, we are inclined to modify the order passed on 25th March, 2014 and direct that the State Government shall appoint the candidates, whose name have not been weeded out in the malpractice and who have obtained/secured seventy percent marks in the Teacher Eligibility Test (TET). The candidates belonging to Scheduled Caste/Scheduled Tribe/Other Backward Classes and the physically handicapped persons, shall be appointed if they have obtained/secured sixty-five percent marks. If there is any policy of the State Government covering any other category for the purpose of reservation, it may be given effect to with the same percentage. It shall be mentioned in the appointment letter that their appointment shall be subject to the result of these appeals and they shall not claim any equity because of the appointment, for it is issued on the basis of the direction passed by this Court. The letters of appointment shall be issued within a period of six weeks." He submitted that the State respondents without holding a proper scrutiny of the testimonials of the selected candidates had granted appointment to them, as a result whereof, the applicants had not been selected. It is not disputed before this Court by any of the parties that the Supreme Court has directed the State Government to issue appointment orders. The appointments made would be subject to the final result of the litigation pending before the Supreme Court. After passing of the order dated 17.12.2014, the Supreme Court has concededly passed another order dated 7.12.2015, in which it is specifically recorded that the State Government, after scanning the documents as well as the representations filed before it has found 12091 persons eligible for being appointed, subject to verification of their antecedents. After passing of the order dated 17.12.2014, the Supreme Court has concededly passed another order dated 7.12.2015, in which it is specifically recorded that the State Government, after scanning the documents as well as the representations filed before it has found 12091 persons eligible for being appointed, subject to verification of their antecedents. There was a specific direction by the Supreme Court to grant appointment to such persons subject to verification within six weeks thence. It is not disputed before this Court that in pursuance of the direction of the Supreme Court, a large number of candidates had been granted appointment including the petitioners herein. The petitioners in pursuance of the appointment, which has been granted to them, have already undergone the training. The appointment orders were issued in favour of the petitioners much before the enforcement of the model code of conduct. The prohibition contained in the guidelines issued by the Election Commission of India would thus not be applicable to the petitioner, who had already been issued appointment orders and in pursuance whereof they have already undergone the training. Apart from it, this Court finds that the appointment of the petitioners is not on account of any executive fiat but in pursuance of the directions issued by the Supreme Court. The State Government is not going to gain any popularity out of it and thus, there is no likelihood of influencing the voters. Such being the position in the instant case, this Court is of the considered opinion that the prohibition placed by the Election Commission of India would not preclude issuance of formal appointment/placement orders in favour of the petitioners. As regards the plea of the applicants seeking impleadment that certain persons had been granted appointment without verification of their testimonials, needless to say that for redressal of such grievance, it is always open to the applicants to take recourse of law, as is permitted. The said controversy cannot be decided in the instant petition, as it is beyond the scope of the instant petition. The said controversy cannot be decided in the instant petition, as it is beyond the scope of the instant petition. Accordingly, the writ petition stands allowed and a direction is issued to the District Basic Education Officer of the concerned Districts to issue formal appointment orders/placement orders in favour of the petitioners within a period of three weeks from the date of production of a certified copy of this order, strictly in accordance with directions contained in the order of the Supreme Court dated 17.12.2014 and g7.12.2015 in Shiv Kumar Pathak (supra).