UPTET : Allahabad Highcourt Judgement for writ 39674 / 2012 and others

UPTET : Allahabad Highcourt Judgement for writ 39674 / 2012 and others

Judgements is lengthy , therefore I take its important details in parts ( for authenticity contact concerned authority, and for verification etc., visit court's website, source link can be found at the end of details)

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PART 4

This Court has no hesitation to record that the advertisement as was published by the State Government on 30.11.2011 itself was misconceived. The State Government without creating a cadre of Apprentice Teachers or by making amendment in the ''1981 Rules' for appointment of Apprentice Teachers could not have published any advertisement inviting applications for appointment as Apprentice Teachers as have been done under the advertisement dated 30.11.2011. What follows from the aforesaid is that the State Government is justified in not proceeding any further with the advertisement dated 30.11.2011 and to quash the same after declaring it to be redundant. Such act of the State Government is held to be in accordance with law and an attempt on the part of the State Government to correct its earlier mistake. 

It is settled law that the appointing authority can withdraw the process of selection at any stage and there cannot be any mandamus asking the authority to complete the process of selection, except when the action is found to be arbitrary.

 The decision of the State Government to quash the advertisement and to drop the proceedings in terms of the advertisement dated 30.11.2011 can neither be said to be arbitrary, nor needs to be interfered with by this Court. The advertisement dated 30.11.2011 itself has been found to be illegal and any direction by this Court to proceed with the same would only perpetuate an illegality. Hon'ble Supreme Court of India has held that no mandamus can be issued by a writ Court asking the authorities to perpetuate the illegality (Ref: Ghulam Rasool Lone Vs. State of Jammu & Kashmit, JT 2009(13) SC, 422). 

This Court may now deal with the contentions which have been raised on behalf of the petitioners. 

The first issue which needs determination is as to which of the arguments on behalf of the petitioners qua the applicability of the '1981 Rules' in respect of the post advertised i.e. Apprentice Teacher is correct, whether the posts advertised are covered by the '1981 Rules' or not? 

From a reading of the first paragraph of the advertisement, it is apparently clear that the selections were to be made against the post of Assistant Teacher in Parishadiya Vidyalayas. From clause 9 of the advertisement, it is further apparent that after selection, the candidate would be appointed in a Parishadiya Vidyalaya of the District concerned. Out of the six months training prescribed, three months of training had to be undergone by actual working in the institution concerned. These three clauses of the advertisement make it abundantly clear that the advertisement dated 30.11.2011 intended appointments against the cadre posts covered by '1981 Rules' in Parishadiya Vidyalayas. Therefore the contention raised by the petitioners lead by Sri Ashok Khare, Sri P.N. Saxena, learned senior Advocates and Sri Shailendra Advocate to the effect the '1981 Rules' will not apply, cannot be accepted. 

It is held that the advertisement as published by the State Government on 30.11.2011 necessarily referred to the cadre post covered by the '1981 Rules'. There being no stipulation of appointment of Trainee Teacher under the said '1981 Rules, the advertisement itself was bad. 

Once the applicability of the '1981 Rules' to the posts advertised is answered in affirmative, the second question to be determined is as to whether the 15th amendment in the '1981 Rules' should have adversely affected the proceedings of the selections initiated under the advertisement dated 30.11.2011? The issue may not detain the Court for long. The Apex Court has repeatedly held that any amendment in the Rules laying down the manner for selection/appointment would be prospective in nature. 

Once the vacancies have been advertised and the process of selection has commenced, then any subsequent amendment will not affect the proceedings of selection already initiated (Ref: P. Mahendran & others Vs. State of Karnataka & others, AIR 1990 SC, 405). This Court, therefore, holds that irrespective of the amendments made in '1981 Rules', the process of selection initiated under the advertisement dated 30.11.2011 could not have been adversely affected because of the 15th amendment in '1981 Rules'. Similarly, this Court also finds force in the contention of the petitioners that merely because some mal practices had been noticed in holding of the TET Examination, the State Government could have taken a decision to cancel the proceedings of selection in terms of the advertisement dated 30.11.2011, inasmuch as as per the records made available to this Court, the mal practice is confined to very few districts of the State. If necessary, an attempt could have been made to segregate the bad part from the good part. This Court therefore holds that both the grounds mentioned in the resolution of the State Government as notified under the Government Order dated 26.07.2012 are not in conformity in law. However, no relief can be granted to the petitioners, in as much as this Court has come to the conclusion that the advertisement dated 30.11.2011 itself was bad and therefore no direction can be issued by this Court to complete the process of selection in terms of the advertisement dated 30.11.2011, as it would only amount to perpetuating the illegalities, which can never be purpose of the order of a writ Court. 

In such circumstances, although this Court has come to the conclusion that the reasons mentioned in the order of the State Government for cancelling the advertisement are not in accordance with law, yet no relief can be granted to the petitioners for the reasons recorded. 

So far as the plea raised by Sri Simant Singh is concerned, Sri C.B. Yadav appears to be correct in contending that the arguments advanced on behalf of Sri Simant Singh are self defeating. The TET Examination as a whole has not been declared as bad by the State Government. Where ever mal practices have been noticed qua holding of TET Examination, the State Government must take a decision for segregating the bad part from the good part and all those students, who are found to be involved in mal practice in respect of TET Examination, may not be permitted to apply for the posts which have now been advertised. 

While the judgement was being delivered, Sri Shailendra Advocate has referred to two judgements of this Court passed in writ petition no.72433 of 2011 Govind Kumar Dixit Vs. State of U.P. and others, decided on 14.12.2011 and writ petition no.71558 of 2011 Sita Ram Vs. State of U.P. and others, decided on 12.12.2011. In the first judgement, the High Court has considered the issue raised qua the validity of Rule 14 of '1981 Rules' as amended vide notification dated 09.11.2011 as well as the validity of the advertisement dated 30.11.2011. The Court has gone on to hold that with the enforcement of NCTE Act, 1993, the training qualification can be prescribed by the NCTE, but the rest of the matter of selection is governed by the Rules framed by the competent authority under the Basic Education Act, 1972 and that the notification issued by the NCTE under the power conferred by the Central Government vide Section 23 of The Right of Children to Free and Compulsory Education Act, 2009 would only be applicable in respect of minimum qualifications and for remaining part, the '1981 Rules' would continue to apply. The Court has thereafter proceeded to hold that the challenge made to Rule 14 has no substance. 

In the second judgement, the High Court had examined and has held that the rule framing authority has to determine the criteria for selection, which may be the marks obtained in TET Examination. 

In my opinion, both the judgements are clearly distinguishable and do not in any way decide as to whether the advertisement dated 30.11.2011 itself was in accordance with law or not. 

In view of what has been stated above, all these writ petitions fail and are accordingly dismissed. 

Dated: 16.01.2013. 

Rks.

Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2325315