Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1923 (ALL)

Arvind Kumar Shukla v. Union of India

2018-09-05

DINESH KUMAR SINGH

body2018
JUDGMENT : Dinesh Kumar Singh, J. 1. Heard learned counsel for the parties. 2. Under the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "Rules, 1981") 50% post of Assistant Teachers in Senior Basic Schools are to be filled up by direct recruitment and 50% by way of promotion from the teachers of Junior Basic Schools. For direct recruitment of 29334 posts of Assistant Teachers of subjects, Science and Mathematics in Senior Basic Schools, the Government issued Notification dated 11th July, 2013, inviting applications from eligible candidates. This notification was later on amended on 23rd August, 2013. 3. The petitioners applied against the aforesaid posts of Assistant Teachers. After selections, counselling was held on 30th June, 2014 and, thereafter, appointment letters were issued to the candidates. The petitioners were not successful in the recruitment. 4. It is important to note that the Teacher Eligibility Test (hereinafter referred to as "TET") is an essential qualification for recruitment and appointment on the post of Assistant Teacher. The National Council for Teachers Education (hereinafter referred to as "NCTE") after promulgation of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as "Act, 2009") in exercise of powers conferred by sub-section (1) of Section 23 of Act, 2009 has laid down the minimum qualification for a person to be eligible for appointment as a teacher in Classes I to VIII in a school as defined in clause (n) of Section 2 of the Act, 2009. Under this Notification, TET is an essential qualification for appointment in Senior Basic Schools and Junior Basic Schools. 5. Further, to supplement the aforesaid Notification dated 23rd August, 2013, NCTE has issued guidelines for conducting the TET by the appropriate Government. The aforesaid guidelines for conducting TET provide that a person, who secures 60% or more marks in the TET Exam, will be considered as TET pass. However, it is also provided that concessions to persons belonging to SC/ST, OBC, differently abled persons etc. can be given in accordance with their extant reservation policy. It is also provided that the weightage should be given to the persons having TET Certificate in the recruitment process, but qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criterion for appointment. 6. can be given in accordance with their extant reservation policy. It is also provided that the weightage should be given to the persons having TET Certificate in the recruitment process, but qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criterion for appointment. 6. On behalf of the petitioners, it is submitted that in relation to open category 60% scores is required to get the TET Certificate, whereas for reserved category candidate it is 55%. It is further submitted that reservation in selection and appointment of Assistant Teacher in pursuance of the Notification dated 11th July, 2010 has been accorded as per the provisions of the Government Order dated 25th March, 1994. 7. In the present petition, the petitioners have challenged the Government Order dated 25th March, 1994. 8. The Government Order dated 25th March, 1994 was issued to explain the provisions of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereafter referred to as "Reservation Act, 1994"). 9. Clause-IV of the aforesaid Notification provides that if a person belonging to reserved category finds place in merit list with general category candidate in the result of selection then the selection of such a person belonging to other reserved category candidate shall not be considered against the reserved post, even though such a reserved category candidate has availed any of the relaxation meant for reserved category candidate such as relaxation in age or availing any other facility for reserved category candidate. Section 3(6) of the Reservation Act, 1994 reads as under:- "3(6) If a person belonging to any of the categories mentioned in subsection (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1)." 10. Thus, the Government Order dated 25th March, 1994 is nothing but reiteration of sub-section (6) of Section 3 of the Reservation Act, 1994. 11. Thus, the Government Order dated 25th March, 1994 is nothing but reiteration of sub-section (6) of Section 3 of the Reservation Act, 1994. 11. The learned counsel for the petitioners has submitted that the reserved category candidates have already availed the benefit of reservation in the TET Exam and, therefore, the reserved category candidates, even though they have secured merit in general category, could not have been deemed to have selected against the general category candidates inasmuch as it is violative of Article 16 (1) and 16 (2) of the Constitution. He has further submitted that once reserved category candidates have availed reservation in securing admission and passing the TET Exam, they cannot be given the benefit of reservation in selection of Assistant Teacher. He has further submitted that the selection of the reserved category candidates, who have secured position in the merit list along with the general category candidates, has been done pursuant to Government Order dated 25th March, 1994. This Government Order provides a mandate that reserved category candidate, who has secured his position in the merit along with general category candidate, such vacancy should not be considered against the reserved category candidate, though such a candidate has availed concessions such as age relaxation etc. and availed facilities as a reserved category candidate, which is violative of Articles 14 and 16 (1) and 16 (2) of the Constitution. The learned counsel for the petitioners, therefore, submits that the Government Order dated 25th March, 1994 is liable to be quashed and a direction is liable to be issued to the authorities to weed out names of candidates of reserved category who have been selected and appointed, applying the provisions of Government Order dated 25th March, 1994. 12. I have carefully heard and considered the submissions made by the learned counsel for the petitioners. 13. The Government Order dated 25th March, 1994 is nothing but reiteration of Section 3 of Reservation Act, 1994. In this writ petition, the petitioners have not challenged the provisions of Reservation Act, 1994. The learned counsel for the petitioners has also not been able to demonstrate that how the Government Order dated 25th March, 1994 is violative of provisions of Reservation Act, 1994. In this writ petition, the petitioners have not challenged the provisions of Reservation Act, 1994. The learned counsel for the petitioners has also not been able to demonstrate that how the Government Order dated 25th March, 1994 is violative of provisions of Reservation Act, 1994. In absence of challenge to the substantive provisions of the Reservation Act, 1994 under which Government Order has been issued, challenging the Government Order dated 25th March, 1994 has no basis and the same is liable to be rejected at the outset. Therefore, in absence of challenge to the substantive provisions of Section 3 of Reservation Act, 1994, challenge to the Government Order Dated 25th March, 1994, which was issued to clarify the provisions of Reservation Act, 1994, fails. 14. Further, submission of learned counsel for the petitioners is that since the reserved category candidates have availed the benefit of reservation in TET Exam, they should not be given benefit of reservation in selection and recruitment of the Assistant Teacher. I find no force in this submission of the learned counsel for the petitioners. Qualifying the TET Exam as per Rules is not a guarantee for employment. It is eligibility qualification to participate in the selection process. There is a difference between eligibility qualification and selection for employment. Reservation in educational institution is provided under Article 15 of the Constitution, whereas reservation in employment is provided under Article 16 of the Constitution. Merely because a person has secured admission in a course, which makes him eligible to participate in the selection process, does not amount to secure employment for which he becomes eligible after completing the course. Therefore, the reservation in employment cannot be denied to a person who belongs to reserved category and has secured admission in a course to become eligible for such an employment on the ground that he has already secured admission on the basis of reservation in getting admission in a course to acquire eligibility. 15. Considering the aforesaid aspects of the matter, I find no merit and substance in this petition, which is hereby dismissed.