Dismissed

State of U.P. Thru Secy. Basic Education Govt. of U.P. v. Neeraj Kumar Pandey and 4 Others

Allahabad HC12 Apr 2018SPLA/648/2017

Case brief

AI extract

What is this about?

The Court dismissed Special Appeals filed by the State of U.P. challenging an order that directed the Board of Basic Education to complete the recruitment process for over 94,000 teacher posts. The Court held that stopping recruitment based on alleged oral directives lacked justification.

What did the court decide?

Direction to Board of Basic Education to complete recruitment for 94,264 posts within two months. Special Appeals dismissed.

State of U.P. Thru Secy. Basic Education Govt. of… — Service and Employment | Allahabad HC (2018)

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Court No. - 39

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Case :- SPECIAL APPEAL No. - 648 of 2017

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Appellant :- State Of U.P. Thru' Secy. Basic Education Govt. Of U.P. Respondent :- Neeraj Kumar Pandey & 4 Others Counsel for Appellant :- Pranesh Dutt Tripathi,Sr. Advocate Counsel for Respondent :- Seemant Singh,Alok Dwivedi,Bhanu Pratap Singh,Man Bahadur Singh,Ravi Kant,Santoosh Kumar Dwivedi,Tarun Agarwal

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with

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Case :- SPECIAL APPEAL DEFECTIVE No. - 33 of 2018

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Appellant :- State Of U.P. Respondent :- Umme Safia Faridi And Others Counsel for Appellant :- Mr Pranesh Dutt Tripathi Counsel for Respondent :- Mr Siddharth Khare,Mr Man Bahadur Singh

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Case :- SPECIAL APPEAL DEFECTIVE No. - 30 of 2018

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Appellant :- State Of U.P. Respondent :- Deepika Singh And Others Counsel for Appellant :- Mr Pranesh Dutt Tripathi Counsel for Respondent :- Mr Shantanu Khare

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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Special Appeal No.648 of 2017 has been filed to assail the judgment and order dated 3 November 2017 passed in Writ A-No.27870 of 2017 (Neeraj Kumar Pandey & Anr. Vs. State of U.P. & Ors.,). Special Appeal Defective No.33 of 2018 has been filed to assail the judgment and order dated 3 November 2017 passed in Writ A-No.37455 of 2017 (Umme Safia Faridi & Anr. Vs. State of U.P. & 2 Ors.,). Special Appeal Defective No.30 of 2018 has been filed to assail the judgment and order dated 3 November 2017 passed in Writ A-No.40150 of 2017 (Deepika Singh & 27 Ors., Vs. State of U.P. & 2 Ors.,).

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The aforesaid three Writ Petitions and thirteen other Writ Petitions

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had been filed for setting aside the order dated 23 March 2017 passed by the Secretary of the Board of Basic Education¹ suspending the on going recruitment process for appointment of Assitant Teachers. It needs to be noted that the State of U.P. has filed Special Appeals against the judgments rendered in the aforesaid three writ petitions but has not filed Special Appeal against judgments rendered in the remaining thirteen Writ Petitions.

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The learned Judge has allowed the aforesaid three Writ Petitions and the remaining thirteen other Writ Petitions filed with almost identical prayers and has directed the Secretary of the Board to complete the process of selection strictly in terms of the Circulars dated 16 June 2016, 19 September 2016, 15 December 2016 and 30 December 2016, expeditiously and preferably within a period of two months from the date of communication of the judgment.

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It transpires from the records of the Writ Petitions that a Government Order dated 11 July 2013 was issued for appointment of as many as 29334 Assistant Teachers in Science/Mathematics in Upper Primary Schools (Class 6-8). Out of these, 50% posts were for Mathematics Teachers and the remaining 50% posts were for Science Teachers. The recruitment was required to be completed within a time schedule provided for in the Government Order and the first counselling was to commence from 4 October 2013. A Government Order dated 15 December 2016 was also issued for appointment of 4000 Assistant Teachers (Urdu Language) in Basic Schools run by the Board. Another Government Order dated 15 December 2016 was issued for appointment of 12460 Assistant Teachers in Primary Schools. On 16 June 2016 one more Government Order was issued for appointment of 16448 Assistant Teachers in Primary Schools.

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1 The Board

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The Order dated 23 March 2017 issued by the Joint Secretary of the Basic Shiksha Parishad put in abeyance the aforesaid recruitment process covered by these Government Orders. It is for this reason that candidates who had submitted applications pursuant to the aforesaid Government Orders had assailed this communication dated 23 March 2017 with a further prayer that the recruitment process should be concluded.

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It also transpires from the records that when the recruitment process was underway, A Model Code of Conduct was enforced in the State due to elections and so the process was put on hold. However, after the elections were over, a Circular dated 17 March 2017 was issued by the Secretary in the State Government to ensure compliance of the earlier directions that had been issued for completing the recruitment. However, within six days a fresh Circular dated 23 March 2017 was issued to put in abeyance the recruitment process.

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Learned Standing Counsel was granted time by the learned Judge to seek instructions but when the matter was taken up, learned Standing Counsel stated that though the Principal Secretary, Basic Education Department and other Authorities had been informed of the order, but instructions had not been received from them.

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A short counter affidavit was, however, filed by the Secretary of the Board to which a rejoinder affidavit was also filed. Amongst others, it was stated in the short counter affidavit that an oral order was received from the State Government and that is why the process of appointment/posting of new teachers had been withheld for the time being across the State by the Board.

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In regard to the oral directions said to have been issued by the State, the learned Judge noticed that in Writ-C No.20421 of 2017 that

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had been filed in regard to selection made by the U.P. Secondary Education Services Selection Board, a similar stand had been taken but when the Principal Secretary, Secondary Education was directed to file his personal affidavit, he stated that he had not issued any oral direction to the Commission to withhold the declaration of the result.

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There is nothing on the record to substantiate that oral directions had been issued by the State. Even otherwise, the issue that arises for consideration in these Special Appeals is as to whether the Board could have put on hold the on going recruitment process merely because of some oral instructions alleged to have been issued by the State. The communication dated 23 March 2017, except for mentioning that the on going recruitment process should be put on hold, does not give any reason as to why it was required to be put on hold.

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In the affidavits filed in support of the appeal, the State Government has not made any averment that the factual position noted by the learned Judge in connection with the statement made in another Writ Petition by the Principal Secretary in the State Government that the State Government had not issued any oral instructions is incorrect. It would, therefore, be reasonable to assume that the State Government had not issued any oral instructions.

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Sri Ravi Kant, learned Senior Counsel appearing for the State of Uttar Pradesh assisted by Sri Pranesh Dutt Tripathi, learned Standing Counsel, however, urged that though the State may not have responded to the order passed by the Court for furnishing the instructions, but nonetheless, in the facts and circumstances of the case, the matter should be remitted to the learned Judge with liberty to the State Government to file a counter affidavit to place on record the correct facts. Learned Senior Counsel has also referred to the affidavit filed by the Board to

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contend that the Board was justified in stopping the on going recruitment process.

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Sri Ashok Khare, learned Senior Counsel appearing for the writ petitioners as also other learned counsel appearing for the Writ Petitioners, however, submitted that the impugned judgment does not called for any interference, particularly when even in the appeal, no good reason has been assigned for putting on hold the recruitment process.

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We have considered the submissions advanced by learned counsel for the parties.

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At this stage, it would be appropriate to refer to the recruitment process that had been put on hold because of the instructions issued by the Joint Secretary of the Board in his communication dated 23 March 2017 and the same are as follows:-

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Sr. No.	Recruitment	Total Posts	G.O.
1.	Assistant Teachers Urdu in PrimarySchools	4000	15.12.2016
2.	Assistant Teachers in PrimarySchools	12460	15.12.2016
3.	Assistant Teachers in PrimarySchools	16448	16.06.2016
4.	Science/Math Teachers in Upper Primary (Class6-8)	29334	11.07.2013
5.	Instructors (Physical Training) in Upper Primary Schools(Class 6-8)	32022	19.09.2016

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Thus, the recruitment for as many as 94,264 Assistant Teachers/Instructors had been put on hold merely because of the communication dated 23 March 2017 sent by the Joint Secretary of the Board.

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It has been pointed out by learned counsel for the writ petitioners that out of 29334 posts of Assistant Teachers in Science/Mathematics, many of them have already been filled up and likewise, out of 16448 posts of Assistant Teachers in Primary Schools, many have been filled up.

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It has also been pointed out that out of 94,264 posts, 12460 posts of Assistant Teachers are covered by the Circular dated 15 December 2016 that was assailed in Writ Petition and in Special Appeal Defective No.365 of 2017 (Kuldip Singh & 5 others Vs. State of U.P. & 8 Others) connected with Special Appeal Defective No.367 of 2017 (Sunil Dwivedi Vs. Gyan Chandra and 8 Others) and Special Appeal Defective No.556 of 2017 (Archana Verma & 3 Others Vs. State of U.P. & 8 Others). A Division Bench of this Court by judgment and order dated 6 February 2018, directed the State Government to take a decision as to whether they would like to proceed with the selection process or not. While deciding the Special Appeal, the Division Bench rejected the contentions advanced by the State that the Rules promulgated with effect from 9 November 2017 should be made applicable to the recruitment process since the advertisement was issued prior to 9 November 2017. Learned counsel for the writ petitioners have also placed before the Court, a Government Order dated 11 April 2018 that has been issued to give effect to the aforesaid judgment and order dated 6 February 2018 in the aforesaid Special Appeals. A direction has, therefore, been issued to make appointments of 12460 Assistant Teachers pursuant to the Government Order dated 15 December 2016, but of course that has been made subject to Special Appeal No.648 of 2017.

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Learned counsel for the writ petitioners have also placed before the Court, a communication dated 7 December 2017 in regard to appointment of 29344 Assistant Teachers covered by the Circular dated

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11 July 2013. It is stated that for the candidates who had received appointment letters but could not join for some reason, steps should be taken at the earliest for their joining.

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The Government Orders were issued on 11 July 2013, 15 December 2016, 16 June 2016 and 19 September, 2016 for as many as 94,264 posts of Assistant Teachers/Instructors. This itself shows that there is a dearth of Assistant Teachers/Instructors and for no rhyme or reason, the Board issued the circular dated 23 March 2017 putting on hold the on going recruitment process. This apart, the State itself is making appointment against the posts covered by the Circular.

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It has also been urged by learned Senior Counsel appearing for the appellant that because of the coming into force of the Right of Children to Free and Compulsory Education Act, 2009² an exercise had to be undertaken to find out the number of teachers actually required. It needs to be noted that the exercise had already been undertaken in 2013, 2015, and 2016 and except for making a bald statement, nothing has been pointed out in any of the affidavits that there is an error in the exercise earlier undertaken.

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The contention of learned Senior Counsel for the appellant that the written examination has also to be conducted because of the amendment made on 7 November 2017 in the Rules cannot also be accepted for the simple reason that the advertisement had been issued earlier to that. The above contention has also been specifically rejected by Division Bench of this Court by order dated 6 February 2018 in the aforesaid Special Appeals filed by Kuldip Singh and Others.

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It is more than apparent that there were no good grounds for putting on hold the recruitment process. What is important to note is that

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2 The Act, 2009

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when confronted, the Board made a statement in the Court that oral directions had been issued by the State Government for putting on hold the recruitment process and when called upon, the State Government in one of the matters, denied having issued such instructions. Even if it be assumed that the State Government has actually issued oral directions then we have no hesitation in observing that such oral directions could not have been made a ground by the Board to keep in abeyance the recruitment process. Even the communication dated 23 March 2017 sent by the Board does not indicate any reason as to why the recruitment process should be put on hold.

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In such circumstances, there is no good reason to interfere with the directions issued by the learned Judge in the impugned judgment. We also expect that the Board will ensure that the recruitment process initiated by the aforesaid Government Orders dated 11 July 2013, 15 December 2016, 16 June 2016 and 19 September 2016 shall be completed as expeditiously not latter than two months from today.

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The Special Appeals are, accordingly, dismissed.

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Order Date :- 12.4.2018 Junaid

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(Dilip Gupta,J.)

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(Neeraj Tiwari,J.)

State of U.P. Thru Secy. Basic Education Govt. of U.P. v. Neeraj Kumar Pandey and 4 Others

Case brief

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State of U.P. Thru Secy. Basic Education Govt. of U.P. v. Neeraj Kumar Pandey and 4 Others

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