Wednesday, September 25, 2013

Some Recent Hearings / Decisions Made By Allahabad High Court Regarding Teachers Recruitment / Teacher Eligibility Test


Some Recent Hearings / Decisions Made By Allahabad High Court Regarding Teachers Recruitment / Teacher Eligibility Test








HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 1 

Case :- WRIT - A No. - 48974 of 2013 

Petitioner :- Samman Devi & Anr. 
Respondent :- State Of U.P.& 7 Ors. 
Counsel for Petitioner :- Madhup Vishwas,Arun Kumar Tripathi 
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh 
Hon'ble V.K. Shukla,J. 
Learned Standing Counsel has accepted notice on behalf of the respondent nos. 1 and Sri Vikram Bahadur Singh, Advocate has accepted notice on behalf of the respondent nos. 2 and 3. 
Issue notice to respondent nos. 4 to 8. 
Each one of the respondent is granted six weeks time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter. 
List after eight weeks alongwith record of W.P. No. 34407 of 2013. 
It is being contended by the petitioners that there is judgment of this Court dated 21.5.2009 in Civil Misc. Writ Petition No. 6999 (S/S) 2008 and therein this Court has interpreted Rule 22 of U.P. Basic Education (Teachers) Service Rules, 1981 holding seniority is to be determined from the date of substantive appointment. Petitioners submit that in such a situation once incumbent had been accorded promotion from the post of Assistant Teacher of Primary Schools to Higher post, then his/her seniority is not� to be calculated from the date of initially appointment but on the basis of substantive appointment. Petitioners submit that� seniority has been prepared on totally wrong premises and promotional exercise� now is to be undertaken. 
In view of this, District Basic Education Officer, Fatehpur shall ensure at the point of time when he proceeds to accord promotion that seniority list should� adhered to strictly in consonance with Rule 22 of U.P. Basic Education (Teachers) Service Rules, 1981. 
Order Date :- 11.9.2013 
T.S. 



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HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. 1 

Civil Misc. Writ Petition No. 49437 of 2013 
Chandrika Yadav 
Versus 
State of U.P. and others. 

Hon'ble V.K. Shukla,J. 
Petitioner has approached this court requesting therein that writ in the nature of mandamus be issued directing the respondents to issue appointment letter to the petitioner on the post of assistant teacher in any Basic school pursuant to the advertisement dated 14.6.2013. 
On the matter being taken up today, precise query has been raised as to what has been the foundation and basis for non issuing of appointment letter, and then it has been informed by Sri Sanjay Chaturvedi, Advocate representing District Basic Education Officer that as on date petitioner cannot be offered appointment for the simple reason that he has crossed 50 years of age and as such he is ineligible to be offered appointment in consonance with IIIrd proviso of Rule-6 of U.P. Basic Eduction (Teachers) Services Rules, 1981. 
This Court has the occasion to peruse the aforementioned Rules, 1981 and Rule 6 deals with the age of a candidate who intends to be recruited for the post of Assistant Teacher and therein IIIrd proviso clearly proceeds to mention that where after successful completion of a course of training prescribed for teachers of basic Schools, a candidate could not get appointment due to non availability of vacancy in the district, the period he has remained un-appointed shall not be counted for the calculation of his age, if he has not attained the age of more than fifty years on the date of appointment. Accepted position is that petitioner has already crossed 50 years of age and as such as on date no directive can be issued for consideration of his claim. Only relaxation which has been so accorded in this direction is same is in reference to candidates, who have completed Special B.T.C. Course, 1999 and B.Ed/B.P.Ed/C.P.Ed. and further relaxation has been accorded in reference of having degree in Urdu subject or complete B.T.C., upper age limit determined by the State Government. Here in the present case factual situation is that petitioner has crossed the age of 50 years. 
Prayer which has been made by the petitioner cannot be accepted for the simple reason on account of the fact that as on date petitioner has already crossed 50 years of age as such he is prohibited from being appointed under Rule-6 of U.P. Basic Education (Teachers) Service Rules, 1981. Accepted position is that petitioner has already crossed 50 years of age and as such as on date no directive can be issued for consideration of his claim. Petitioner as on date is disqualified to be appointed as Assistant teacher under U.P. Basic Education (Teachers) Service Rules, 1981. 
Consequently, present writ petition is dismissed. 
Dt. 12.09.2013 
T.S. 


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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

?Court No. - 6 

Case :- SERVICE SINGLE No. - 5124 of 2013 

Petitioner :- Meer Mujahid Ali & Another 
Respondent :- State Of U.P. Thru Its Prin.Secy.Deptt.Of Basic Edu. & Ors. 
Counsel for Petitioner :- Alok Kumar Misra 
Counsel for Respondent :- C.S.C.,D.R. Misra 

Hon'ble Shabihul Hasnain,J. 
Heard Sri Alok Kumar Misra learned counsel for the petitioner, learned Standing Counsel for opposite parties no. 1 and 2 and Sri D.R. Misra for opposite party no. 3. 
The petitioner is seeking a direction to the opposite party no. 1 to modify and add the necessary provision as given in Rule 14(4) of U.P. Basic Education (Teachers) Service Rules, 1981 in the advertisement dated 17.8.2013, as contained in Annexure no. 3 to the writ petition. For convenience Rule 14 along with sub Rule 4 have been quoted by the petitioner in para no. 3 of the writ petition. The same is being reproduced in this order also : 
14. Determination of vacancies and preparation of list-(1) In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to scheduled castes, scheduled tribes, backward classes, dependents of freedom fighters and other categories under Rule 9 and notify the vacancies to the Employment Exchange and in at least two newspapers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned. 
(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.) 
(3) The Regional Assistant Director of Education (Basic) may, on the application of a candidate, and for reasons to be recorded, direct that his name be included at the bottom of the list prepared under sub-rule-(2). 
-2- 
(4) The names of candidates in the list prepared under sub-rule� (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates, who have passed the training course in a particular year shall be arranged in accordance with the quality points specified in the Appendix. 
(5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). 
(6) The list prepared under sub-rule (2) and arranged in accordance with sub-rule (4) shall be forwarded by the appointing authority to the selection committee.) 
Petitioner says that he has obtained certificate of 'Moillim-e-Urdu' in the year 1995 and he has also qualified T.E.T. in the year 2011. Petitioner simply says that in the merit list he should be given benefit of seniority to the persons who have obtained this degree subsequently. He says that this is the intention of the legislature while enacting Rule 14(4) as mentioned above. 
The advertisement dated 17.8.2013 has been annexed as Annexure no. 3 to the writ petition. 
The petitioner does not have any conflict with the advertisement nor he is challenging any provision of the advertisement� / order dated 17.8.2013. This being so the argument of the petitioner appears to be sanguine and correct. 
The learned Standing Counsel has not been able to deny the argument of the petitioner on any legal ground. However, he prays for and is granted four weeks' time to file counter affidavit. One week is provided to file rejoinder affidavit. List thereafter. 
Meanwhile the opposite parties are directed to arrange the names of the petitioner year-wise in accordance with the spirit of sub rule (4) of Rule 14 as mentioned above. The merit list shall be prepared accordingly. 
Order Date :- 9.9.2013/Om


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HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 1 
Case :- WRIT - A No. - 44405 of 2013 
Petitioner :- Gyanendra Kumar And 2 Ors. 
Respondent :- State Of U.P.& 2 Ors. 
Counsel for Petitioner :- R.S.Ram 
Counsel for Respondent :- C.S.C.,R.B.Pradhan 

Hon'ble V.K. Shukla,J. 
Learned Standing counsel has accepted notice on behalf of respondent no. 1. Sri R V Pradhan, Advocate has accepted notice on behalf of respondent nos. 2 and 3. 
Six weeks time is accorded to each one of the respondent to file counter affidavit. Rejoinder affidavit may be filed within next two weeks. 
List thereafter, alongwith Civil Misc. Writ Petition no. 34407 of 2013 (Ved Prakash Gautam and others Vs. State of U.P. and others). 
This court has already stayed the operation of the circular dated 14.06.2013, as such no separate� order is required to be passed repeating same order. 
However, passing of this order will not prevent the respondents from finalizing the seniority list strictly as per Rule 22 of the U.P. Basic Education (Teachers) Service Rules 1981. 
Order Date :- 29.8.2013 
Dhruv 

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HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 34 
Case :- WRIT - A No. - 13922 of 1996 
Petitioner :- Jawahar Yadav & Another 
Respondent :- State Of U.P. & Others 
Counsel for Petitioner :- N.I. Jafri,M.R. Khan 
Counsel for Respondent :- C.S.C. 

Hon'ble Sudhir Agarwal,J. 
1. Called in revised. None appeared on behalf of petitioner. However, I have perused the record. 
2. The petitioner has sought following relief: 
"to issue a writ, direction or order in the nature of writ of certiorari quashing the order dated 17.1.96 (Annexure-8 to the petition) passed by respondent no. 2." 
3. The petitioners appear to have been sent for training in 1996 having been appointed sometimes in 1984-85, i.e., after promulgation of U.P. Basic Education (Teachers) Service Rules, 1981. It is also evident from record that petitioners did not possess training qualification and, hence as per Rules 4 and 5 could not have been appointed lacking requisite qualification. That being so, their appointment itself being illegal, they would not have been sent for training. 
4. This issue has already been considered in detail vide judgment of date passed in Writ Petition No. 13918 of 1996, Ram Awatar Mishra and another Vs. U.P. Basic Shiksha Parishad and another and for the reasons stated therein and following the aforesaid judgment, this writ petition is also stands dismissed. 
Order Date :- 4.9.2013 
AK 

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HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. - 31 

Case :- WRIT - A No. - 64888 of 2008 

Petitioner :- Suresh Singh 
Respondent :- State Of U.P. & Others 
Petitioner Counsel :- Ajay Bhanot,G.S. Chauhan 
Respondent Counsel :- C.S.C.,J.N. Maurya,Sushil Kumar Singh 

Hon'ble Pradeep Kumar Singh Baghel,J. 
The petitioner is a Ex-Serviceman, he has preferred this writ petition for issuance of writ of certiorari to quash the order dated 7.11.2008 whereby his representation for relaxation in age has been rejected. 
A brief reference to the factual aspects would suffice. 
The petitioner did his BTC training course in the year 1974 and after training he was enrolled in the Indian Army as RECT on 3rd May, 1976. After reaching his age of superannuation petitioner retired on 1.6.2005. After superannuation he made an application for appointment as Assistant Teacher in a Primary School run by the Board on 18th August, 2005. However, his application has been rejected on the ground that petitioner age is beyond the age limit mentioned in the statute. Aggrieved by the said decision the petitioner preferred writ petition No. 15489 of 2007 (Suresh Singh v. State of U.P. and others) before this Court. The said writ petition was disposed of on 4.2.2008 with a direction to the Basic Shiksha Adhikari to decide the representation of the petitioner. Consequent thereupon the Basic Shiksha Adhikari after affording opportunity to the petitioner rejected the claim of the petitioner on the ground that he is above 50 years and there is no provision for grant of relaxation of age beyond 50 years. The order dated 9.2.2007 has been passed jointly under the signature of the Secretary, Basic Shiksha Parishad and the Basic Shiksha Adhikari. Feeling aggrieved by the said order the petitioner has preferred this writ petition. 
A counter affidavit has been filed on behalf of the respondents. The stand taken in the counter affidavit is that the petitioner is an Ex-Servicemen and all BTC holder upto the year 1997 have been given appointment. It is further stated in the counter affidavit that the recruitment of the Assistant Teacher are governed by the U.P. Basic Education (Teachers) Service Rules, 1981 and after receiving instruction from the Secretary, Basic Shiksha Parishad the Basic Shiksha Adhikari has rejected the claim of the petitioner. Along with the rejoinder affidavit the petitioner has annexed a document to establish that similarly situated persons whose age was beyond the upper age limit have been granted appointment. The said communication dated 26.12.2011 passed by the Principal DIET, Maharajganj to one Subedar is placed on record as Annexure-1 to the rejoinder affidavit, the said communication has been obtained by the petitioner under the provisions of Right To Information Act. As the said document was enclosed first time along with the rejoinder affidavit this Court directed the learned counsel for the Basic Shiksha Adhikari to file Supplementary Affidavit replying the averments made in the rejoinder affidavit. In compliance thereafter Supplementary Counter Affidavit has been filed today. In the said Supplementary Counter Affidavit the communication which has been brought on the record to establish that the similarly situated persons have been given appointment has not been replied/denied. 
I have heard Sri Ajay Bhanot, learned counsel for the petitioner and Sri Sunil Kumar Singh learned counsel for the Basic Shiksha Adhikari as well as learned Standing Counsel. 
Learned counsel for the petitioner Sri Bhanot submits that the petitioner was entitled for the age relaxation and the Basic Shiksha Adhikari without application of mind has rejected the claim of the petitioner. He further submits that the petitioner completed his training in the year 1974 and as such he is entitled for the upper age limit. Learned counsel for the petitioner submits that the document which has been placed by the petitioner on record regarding similarly situated persons who are also Ex-Servicemen and their age is above 50 years is not denied in the Supplementary Counter Affidavit. 
Learned counsel for the Basic Shiksha Adhikari submits that the Basic Shiksha Adhikari before passing the said order has sought clarification from the Secretary, Basic Shiksha Parishad who clearly stated that there is no power to provide age relaxation beyond 50 years to the Ex-Servicemen. In view of the said clarification/guidance issued by the Secretary, Basic Shiksha Parishad the Basic Shiksha Adhikari has rightly rejected the claim of the petitioner. 
I have considered the respective submissions advanced by the learned counsel for the parties and perused the record. Appointment as Assistant Teacher in Basic School are governed by the statutory rules which has been framed in exercise of power under subsection (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972 (U.P.Act B No.34 of 1972) and the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (in short Rules, 1981). Rule 6 of the Rules, 1981deals with requisite age of a candidate. The said Rule reads as under:- 
"6 Age.- A candidate for recruitment to any post referred to in Clause (a) or proviso to clause (b) of Rule 5, must have attained the age of eighteen years and must not have attained the age of more than Thirty -five years on the first day of July, following the year in which the vacancy is notified: 
Provided that the upper age limit shall, in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and dependents of freedom fighters be greater by five years or as provided by the State Government from time to time : 
Provided further that the upper age limit shall, in the case of a candidate, who is ex-serviceman, be greater by three years or as provided by the State Government form time to time: 
Provided also that where after successful completion of a course of training prescribed for teachers of basic schools, a candidate could not get appointment due to non-availability of vacancy in the district, the period he has remained unappointed shall not be counted for the calculation of his age if he has not attained the age of more than fifty years on the date of appointment: 
Provided also that no upper age limit shall apply in case of B.Ed./L.T./B.P.Ed./C.P.Ed or D.P.Ed. trained candidates who have completed special B.T.C. Training Course in the year 1999: 
Provided also that in case of candidates having proficiency in Urdu and having completed two years B.T.C.Urdu special B.T.C. training course or completed special BTC training course the upper age limit shall be such as may be determined from time to time by the State Government" 
For the ex-servicemen in addition to the proviso to Rule 6 of the Rule, 1981 Rule 10 also empowers the authority concerned for grant of relaxation in certain other categories. Rule 10 of the Rules,1981 reads as under:- 
"Relaxation for ex-servicemen and certain other categories.- Relaxation, if any, from the maximum age-limit, educational qualifications or/and any procedural requirements of recruitment in favour of the ex-servicemen, disabled military personnel, dependents of military personnel dying in action, dependants of Board's servants dying in harness and sportsmen shall be in accordance with the general rules or order of the Government in this behalf in force at the time of recruitment." 
A close look at the gamut of the said Rules it comes out that in the case of ex-servicemen there are provisions for the relaxation under Rule 6 of the Rules,1981 as well as specific Rule has been made Rule 10 of the Rules,1981. From the perusal of the order of the Basic Shiksha Adhikari it is demonstrably established that the statutory Rules have not been taken into consideration. This Court had directed the Basic Shiksha Adhikari to consider the cause of the petitioner and pass appropriate orders. It appears that the Basic Shiksha Adhikari without application of his mind has simply sought a clarification from his superior officer and merely on the communication received from the Secretary, Basic Shiksha Parishad he has passed the impugned order. Once this Court has issued a direction for the Basic Shiksha Adhikari it was obligatory on him to comply the direction instead of complying in true spirit the Basic Shiksha Adhikari has done an empty formality. On this ground his order is vitiated. 
Pertinently, petitioner has relied on another Rule the U.P. (Bhootpurva Sainiko Ke Tritya Shreni aur Chaturth Shreni Ki ab varg 'Ga' aur varg 'Gha' Sevaon Me Aur Paddo Per Rikityo Ka Arakshan) Niyamavali-1977 (in short 1977 Rules). Rule 5 of the 1772 Rules provides that Ex-Army person shall be allowed to reduce the tenure of his service from his actual age. Rule 5 as quoted in paragraph 13 of the Writ Petition reads as as under :- 

"5. Relaxation in the Age and Educational Qualification: (1) Age: an Ex-Army person shall be allowed to reduce the tenure of his service in the Army from his actual age and thereafter, the said calculated age, for the post the person is desirous of, if he is not exceeding 3 years for the prescribed age limit, it shall be deemed that the person is fulfilling the requirements of upper age limit. According to petitioner, in terms of said rule he is entitled for relaxation that is evident from Chart given below:- 
S.No. 
Present age of the petitioner at the time of request for the post in question 
Service period of the petitioner in the Indian Army 
Calculated age as per the Rule 1977 (upper age for the post in question 35 years) 
52 years approx 
29 years approx 
52-29= 23 years 

Petitioner has also brought on record an information which was furnished to him under the provisions of the RTI Act. The Basic Shiksha Adhkari in his communication dated 31.8.2007 has informed that in case of Ex-servicemen personnel the actual period served by him in the Army shall be excluded. A copy of the said document is Annexure -14 to the writ petition. 
Having regard to the facts and circumstances of the case in my view the Director of Education may be issued a direction to consider the cause of the petitioner having regard to the statutory provisions and the factual disputes whether the similarly situate persons have been extended the proviso of Rule 6 and Rule 10 of the Rules, 1981. This fact was categorically mentioned by the petitioner in the rejoinder affidavit and the document which he has received under the Right to Information Act was placed on the record. Inspite of the direction of this Court to file a specific averment a Supplementary Counter Affidavit which has been filed doe not meet the factual aspects raised in the rejoinder affidavit. This Court under Article 226 of the Constitution would not like to enter into determination of this factual aspects. 
After careful consideration of the aforesaid submissions and the facts a direction is issued upon the Director of Education, Basic to consider the cause of the petitioner in the light of the aforesaid observation as expeditiously as possible but not later than three months from the date of communication of this order. the petitioner is at liberty to file a fresh representation along with the supporting documents within two weeks from the date of receipt of this order. 
For the aforestated reasons the order dated 7.11.2008 passed by the Basic Shiksha Adhikari is liable to be quashed. 
Accordingly it is quashed. The writ petition is allowed. 
Parties will bear their own cost. 
Order dated :1.2.2013 
ssm 


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Some candidates suggested that below writ is of professional candidate to appear in Upper Primary Teachers Selection -

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 1

Case :- WRIT - A No. - 44400 of 2013

Petitioner :- Anil Kumar Gautam And 28 Ors.
Respondent :- State Of U.P.& 3 Ors.
Counsel for Petitioner :- Pankaj Kumar Ojha,Shailendra
Counsel for Respondent :- C.S.C.,Syed Nadeem Ahmad

Hon'ble V.K. Shukla,J.
On the matter being taken up today, statement has been made at the Bar that the request, as has been raised by the petitioners before this Court, has been accorded by the State Government and, in view of this, as of date present writ petition has been rendered itself as infructuous.
Consequently, present writ petition is dismissed as infructuous.
Order Date :- 10.9.2013
Shekhar

http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2782278
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HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 1

Case :- WRIT - A No. - 44400 of 2013

Petitioner :- Anil Kumar Gautam And 28 Ors.
Respondent :- State Of U.P.& 3 Ors.
Counsel for Petitioner :- Pankaj Kumar Ojha,Shailendra
Counsel for Respondent :- C.S.C.,Syed Nadeem Ahmad

Hon'ble V.K. Shukla,J.
Put up this case on Wednesday i.e. 4.9.2013.
By that time learned Standing Counsel shall obtain requisite instructions.
Order Date :- 29.8.2013
T.S.
http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2758449


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