Final Decision of Allahabad Highcourt for recruitment of 72825 Teachers in Basic Education Dept.
PART -7
In view of the aforesaid, we proceed to examine the contention of the learned counsel for the parties on the aforesaid issues on merits.
It is necessary to note certain relevant facts which are on record before proceeding to answer the aforesaid issues. After enactment of the Act, 2009, notification dated 23.8.2010, was issued by the National Council for Teacher Education laying down the minimum qualifications for appointment of Teachers in primary schools. Notification dated 23.8.2010, was further amended vide notification dated 29.7.2011.
The State of U.P. has also framed rules namely: The Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011. Rule 15 of the aforesaid rules provided that minimum educational qualifications for teachers laid down by an authority, authorized by the Central Government, by notification, shall be applicable for every school. The National Council for Teacher Education has also issued guidelines dated 11.2.2011, for conducting Teacher Eligibility Test and for providing weightage to the marks of the Teacher Eligibility Test while making appointment on the post of teachers. The
State of U.P. amended the Rules, 1981 to make it in conformity with the notification dated 23.8.2010 as well as with the guidelines of the National Council for Teacher Education dated 11.2.2011. The 12th amendment rules dated 09.11.2011, was issued by the State providing for qualifications by National Council for Teacher Education as an essential qualification and providing that the basis of preparing the select list shall be the marks obtained by the candidate in the Teacher Eligibility Test examination. The State of U.P. authorized the U.P. Board of High School and U.P. Intermediate Education to conduct the Teacher Eligibility Test. Teacher Eligibility Test examination was held on 13.11.2011. 596733 candidates appeared in the Teacher Eligibility Test examination for Classes I to V. 524577 candidates appeared in the Teacher Eligibility Test examination for Classes VI to VIII. The U.P. Board of High School and Intermediate Education has authorised one M/s S.K. Printed Data Creative Solution-303 New Delhi to conduct the entire work of preparing the question papers and moderation and evaluation. On 14.11.2011, model answers were uploaded on the website. On 25.11.2011 the result of the Teacher Eligibility Test examination was declared. 49.09% candidates were declared successful in the Teacher Eligibility Test examination for Classes 1 to V and 50.51% candidates were declared successful in the Teacher Eligibility Test examination for Classes VI to VIII. The result of the
Teacher Eligibility Test examination was modified on account of the change of key answers of certain questions on 30.11.2011, 05.1.2012 and 09.1.2012.
Several writ petitions were filed in this Court challenging the result of the Teacher Eligibility Test examination. This Court in Writ Petition No.71563/2011, Lalit Mohan Singh & Ors. Vs. State of U.P. & Ors, disposed of the writ petition on 16.12.2011, directing that the marks to be given on six questions on the basis of earlier key answers as well as modified key answers. In Writ Petition No.74109/2011, Tahira Begum Vs. State of U.P. & Ors, a direction was given to give marks on two questions. Writ Petition No.71558/2011, Sita Ram Vs. State of U.P. & Ors and Writ Petition No.72433/2011, Govind Kumar Dixit Vs. State of U.P. & Ors were filed challenging the advertisement dated 30.11.2011 as well as the 12th amendment rules dated 09.11.2011. Both the writ petitions were dismissed on 12.12.2011 and 14.12.2011 respectively. Directions of the Court as noted above was implemented by modifying the result. On 20.12.2011, a modified advertisement was issued inviting applications for the posts of 72825 Teachers. On 31.12.2011, in a regular checking of vehicles, the police of District Ramabai Nagar detained 5 persons who were carrying huge cash and a list of 30 candidates. An F.I.R. was lodged being Case Crime No.675/2011 under Section 420/120 B I.P.C. and under the Prevention of Corruption Act, 1988. The money was allegedly collected for getting the candidates passed in the Teacher Eligibility Test examination and to get them appointed. The allegations made against the Teacher Eligibility Test examination were taken notice by the State Government and a High Powered Committee was constituted by Government Order dated 10/4/2012 headed by Chief Secretary of the State to look into the allegations made against the Teacher Eligibility Test Examination 2011 and submit a report regarding recruitment of teachers and Teacher Eligibility Test Examination. The High Powered Committee submitted its report on 01.5.2012. The High Powered Committed noted that there are about 2.70 lacs posts of Primary Teachers lying vacant in the State of U.P. The allegations made against the Teacher Eligibility Test Examination-2011 were taken note of by the High Power Committee. The Senior Superintendent of Police, Ramabai Nagar had submitted its report before the High Power Committee on the basis of the investigation in Case Crime No.675/2011. The Director of Education also submitted its report. The High Powered Committee noted that some of the original OMR Sheets were not sent to the firm and on the basis of the carbon copy evaluation was made under the direction of the Board of High School and Intermediate Education. In certain OMR Sheets whitener was also used. It also noted that moderation of papers was left to the firm which was not done by the Board of High School and Intermediate Education. Errors in the key answers was noted and the orders of this Court passed in Lalit Mohan's case and Tahira Begum's case was also noted. The High Powered Committee in its report submitted that large number of posts of teachers being lying vacant in the State of U.P., it is not desirable to cancel the Teacher Eligibility Test Examination 2011. The High Powered Committee further recommended that the Teacher Eligibility Test Examination-2011 be made only qualifying examination and the criteria for selection which was earlier prevalent i.e. on the basis of quality points marks should be restored. The High Powered Committee submitted following nine recommendations which are quoted below:
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The two important recommendations which were suggested by the High Powered Committee were, firstly, that the Teacher Eligibility Test Examination-2011 be made only qualifying examination and the criteria for selection which was prior to 12th amendment rules should be restored and, secondly those candidates against whom there are allegations of any irregularity or criminal offence shall be prohibited from participating in the aforesaid examination and their selection shall be cancelled. The above recommendations of the High Powered Committee were considered by the Cabinet and the Cabinet after deliberation took a decision to approve the recommendation of the High Powered Committee. Government Order dated 26.7.2012 was issued accepting and reiterating the above quoted nine recommendations of the High Powered Committee.
Writ Petitions were immediately filed after the issuance of the Government Order dated 26.7.2012. Following the decision taken by the Cabinet 15th amendment rules were published on 31.8.2012 amending the Rules, 1981 by which the criteria for selection as was prevalent prior to 12th amendment rules was restored. The Government Order dated 31.8.2012 was issued to the effect that in view of the 15th amendment rules the earlier advertisement dated (30/11/2011) has become ineffective and be cancelled. The U.P. Basic Education Board issued a communication dated 31.8.2012 to the effect that the criteria for selection having been changed the earlier advertisement dated 30112011 and 20.12.2011 have become ineffective and are cancelled.
Decision of the State Government dated 26.7.2012
The High Powered Committee headed by the Chief Secretary of the State had taken into consideration all the allegations made against the Teacher Eligibility Test-2011 and it was decided not to cancel the result of Teacher Eligibility Test Examination-2011. It was further decided that the Teacher Eligibility Test Examination-2011 be made only qualifying examination and the criteria for selection which was prevalent prior to 12th amendment rules shall be restored. The High Powered Committee recommended that those candidates against whom there are allegations of any irregularity or criminal offence shall be prohibited from participating in the said examination and their result be cancelled. The High Powered Committee suggested that an undertaking on affidavit be taken from all the candidates that in event any irregularity or any involvement in criminal offence is found, there selection shall be cancelled. The Teacher Eligibility Test-2011 has been made a minimum qualifying examination by notification dated 23.8.2010 issued under Section 23 of the Act, 2009. It was not within the power of the State to not accept the Teacher Eligibility Test qualification as an essential qualification. The decision of the High Powered Committee and the Government that the Teacher Eligibility Test Examination-2011 be allowed to continue only as a minimum qualification was of no consequence. The State was bound by the notification dated 23.8.2010 and could not have taken any other decision. When the Teacher Eligibility Test Examination-2011 was not cancelled and allowed to be continued as a minimum qualification in the selection of the post of Assistant Teacher, the decision not to give weightage to the marks obtained in the Teacher Eligibility Test was unsustainable. The material which was on the record relates to the allegations made against few hundreds of candidates. There was no allegations of any mass copying or leaking of the question papers. More than 10 lacs students have appeared in the Teacher Eligibility Test Examination-2011 and the State having taken the decision not to cancell the Teacher Eligibility Test Examination-2011, full effects ought to have been given to the result of the Teacher Eligibility Test Examination-2011 including the marks obtained by the candidates. The ill effect of the irregularity and involvement in criminal offence was met in the recommendations that those candidates against whom there were allegations shall be prohibited to appear in the selection and their result be cancelled and further an undertaking on affidavit be taken from all the candidates. The decision having been taken by the State after due deliberation to continue with the Teacher Eligibility Test Examination-2011 and to rely upon it for minimum qualification for selection there was no requirement for embarking on the amendment of Rules and to change the very criteria for selection.
While deciding the Issue No.3 we have already held that the guidelines dated 11.2.2011, issued by the National Council for Teacher Education require the State to give weightage of the marks obtained in the 'Teacher Eligibility Test' Examination -2011 in appointment on the post of Teachers. The guidelines dated 11.2.2011 issued by the National Council for Teacher Education have been held to be binding. A Full Bench of this Court in Shiv Kumar Sharma (Supra) in paragraph 88 (as quoted above) has already laid down that the State Government has to give weightage to the marks of the Teacher Eligibility Test in the recruitment process. In view of the binding nature of the guidelines dated 11.2.2011, issued by the National Council for Teacher Education and the decision of the Full Bench of this Court in Shiv Kumar Sharma's case (Supra) the State Government could not have taken any decision to ignore the weightage of the marks of the Teacher Eligibility Test Examination-2011. It is relevant to note that immediately after the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011, by which the selection was contemplated as per the marks of the Teacher Eligibility Test, a challenge to advertisement dated 30.11.2011 and 12th Amendment Rules was raised in this Court by means of Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors and Writ Petition No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P. & Ors.
Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors was dismissed on 12.12.2011 by the learned Single Judge of this Court who repelled the challenge to the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011. While dismissing the writ petition following was laid down in paragraph 9. :
"9. So far as making of qualifying examination basis of selection is concerned, it is always permissible to the rules framing authority to determine the criteria for selection which may base on the merits of the candidate possessed in various academic qualifications or qualifying test or any other criteria which may otherwise be valid and once it is so determined, unless it can be said that the same amendment in the rule is contrary to any statutory provision or otherwise ultra vires or vitiated in law, the same cannot be interfered."
Writ Petition No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P. & Ors. was also dismissed by the learned Single Judge of this Court on 14.12.2011. The decision of the State Government dated 26.7.2012 to the effect that the criteria for selection as was prevalent prior to the 12th amendment rules be restored, thus cannot be sustained, which being clearly against the guidelines of the National Council for Teacher Education dated 11.2.2011. As noted above, the learned Single has already held that the grounds mentioned in the resolution of the State Government under the Government Order dated 26.7.2012 as not in accordance with law.
15th Amendment Rules.
While challenging the 15th Amendment Rules, Shri Ashok Khare, learned counsel appearing for the appellants contended that the State was obliged to follow the guidelines dated 11.2.2011 issued by the National Council for Teacher Education which are binding and which has already been upheld by the Full Bench of this Court in Shiv Kumar Sharma's case (supra). It is submitted by Shri Ashok Khare, learned counsel appearing for the appellants that the
Teacher Eligibility Test has been introduced by the notification dated 23.8.2010 for the purposes of maintaining a standard of teacher's education and for the purposes of bringing uniformity in the teacher's selection process. He submits that the candidates obtain educational qualification through different boards with different criteria of marking on account of which selection of teachers only on educational qualifications cannot be said to be on uniform merit. It is submitted that the Teacher Eligibility Test being now a essential qualification in selection of teachers, performance of a candidate in a Teacher Eligibility Test cannot be ignored. He submits that the Teacher Eligibility Test is the most surer test of examining the merit of a candidate.
The grounds for challenge of a statute are well settled. A subordinate legislation can be challenged on the ground of violating the constitutional provisions, the parent statute or any other statutory law. Violation of Part 3 of the Constitution has always been accepted as a ground to strike-down a legislative or executive action. It shall be sufficient to refer to the judgment of the Apex Court in State of Tamil Nadu & Ors Vs. K. Shyam Sunder & Ors, (2011) 8 SCC, 737, wherein the grounds of legislative arbitrariness has been dealt with. Following was laid down by the Apex Court in paragraphs 50,51,52 and 53.
"50. In Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, this Court held that Article 14 strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. Whenever therefore, there is arbitrariness in State action, whether it be of the legislature or of the executive, Article 14 immediately springs into action and strikes down such State action. (See also : E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; and Meneka Gandhi v. Union of India, AIR 1978 SC 597).
51. In Sharma Transport Vs. Government of A.P., AIR 2002 SC 322, this Court defined arbitrariness observing that party has to satisfy that the action was not reasonable and was manifestly arbitrary. The expression "arbitrarily means" act done, in an unreasonable manner, as fixed or done capriciously or at pleasure without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.
52. In Bombay Dyeing & Mfg Co. Ltd. (3) v. Bombay Environmental Action Group, AIR 2006 SC 1489, this Court held that arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness.
53. In Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, AIR 2007 SC 2276; and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Limited, AIR 2009 SC 2337, this Court held that a law cannot be declared ultra vires on the ground of hardship but can be done so on the ground of total unreasonableness. The legislation can be questioned as arbitrary and ultra vires under Article 14. However, to declare an Act ultra vires under Article14, the Court must be satisfied in respect of substantive unreasonableness in the statute itself."
The 15th amendment rules has been challenged on the ground of it being arbitrary and unreasonable being violative of Article 14 of the Constitution. The
notification dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being under a Parliamentary enactment has to prevail over any rules made by the State under a State Act. The Rules, 1981 right from 1993 contains an Appendix which provides a formula for selecting a teacher. Appendix indicates that selection was based only on the educational qualification of an candidate including the training qualification. After the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education, the State amended its Rules, 1981 by 12th amendment rules to bring it in conformity with the above notification and guidelines.
The 12th amendment rules was perfectly in accordance with law and the challenge to the aforesaid rules have also been repelled by this Court in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The decision of the State Government not to give any weightage to the marks obtained in the Teacher Eligibility Test Examination-2011 cannot be said to be in conformity with the guidelines of the National Council for Teacher Education referred to above and was clearly arbitrary. The Full Bench of thisCourt in Shiv Kumar Sharma's case (supra) has already held that the State Government cannot disregard the guidelines of National Council For Teacher Education dated 11.2.2011.
The 15th Amendment Rules is thus also contrary to law declared by this Court. The Teacher Eligibility Test (Examination-2011) which has been recognised as an essential qualification for the teachers selection, hence without giving any weightage to the said examination the State cannot proceed with the selection. As
noted above, the allegations made against few candidates of committing irregularities in the Teacher Eligibility Test or involvement in criminal offence cannot be a ground to deny benefit of Teacher Eligibility Test to lacs and lacs of the candidates against whom there is neither any allegation nor any charge. The
State having not cancelled the Teacher Eligibility Test-2011 and having allowed the Teacher Eligibility Test to be utilised for qualification of candidates ought to have given full effect to the result of the Teacher Eligibility Test examination. The
allegations of irregularities and involvement in criminal offence by some candidates was fully neutralised by the State's decision to debar any such candidates from the selection against whom there are allegations of irregularities or involvement in criminal offence. The High Powered Committee has further stated in its report that an undertaking be taken on an affidavit from all the candidates that in event anything adverse is found against them, their selection shall be cancelled.
The State having given effect to the notification dated 23.8.2011 as well as the guidelines dated 11.2.2011 issued by the National Council for Teacher Education by amending its rules by 12th amendment rules, which was in consonance with the scheme under the Act, 2009, a Parliamentary enactment cannot be allowed to go back and resort to its old criteria for selection which was prevalent prior to the Act, 2009 and prior to the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the
view that Rule 14(3) of the 15th amendment rules by which the criteria for selection was changed has to be held to be arbitrary and unreasonable and deserves to be struck down. The Government Order dated 31.8.2012 was issued by the State in consequence to the 15th amendment rules. The Government Order dated 31.8.2012 states that in view of the 15th amendment rules the earlier advertisement (dated 30.11.2011) has become ineffective and thus be cancelled. For cancelling the advertisement no other reason have been given except the changed criteria of selection by 15th amendment rules. The Government Order dated 31.8.2012 having not given any other reason for cancelling the advertisement except that it had become ineffective after the 15th amendment rules, thus the Government Order dated 31.8.2012, also deserves to be set-aside including the consequential communication dated 31.8.2012 issued by the Board of Basic Education.
Shri C.B. Yadav, learned Additional Advocate General appearing on behalf of the State, in support of his submission, has placed reliance on the various judgments of the Apex Court which need to be noted. He has placed reliance on the judgment of the Apex Court in Union of India & Ors. Vs. O. Chakradhar, 2002 (2) Supreme 50. In the said case the Railway Recruitment Board had issued advertisement for the post of Junior Clerk-cum typist in which the respondent was appointed. After appointment various irregularities of serious nature in the conduct of selection was found and the Railway Administration cancelled the entire panel and terminated the services of the respondent. The decision was challenged before the Tribunal which had set-aside the termination of service. The High Court affirmed the judgment of Central Administrative Tribunal against which the Union of India went in appeal. The Apex Court had noted that from the report of the CBI the whole selection smacks of arbitrariness and malafides. Following was observed by the Apex Court in paragraph 11:-
"11. As per the report of the CBI whole selection smacks of malafide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result......"
The Apex Court allowed the appeal and restored the decision of the railway administration. Present is not a case where the State had cancelled the Teacher Eligibility Test-2011, rather it decided not to cancel the examination with a rider to debar those candidates against whom there are allegations of irregularity or involvement in criminal offence. Thus, the said case does not help the respondents. In paragraph 7 of the judgment, the Apex Court laid down, that in our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter.
The next judgment relied on by Shri C.B. Yadav, learned Additional Advocate General is Chairman, All India Railway Recruitment Board & Anr Vs. K. Shyam Kumar & Ors, (2010) 6 SCC 614. In the said case the decision of Railway Board directing the Railway Recruitment Board (RRB) to conduct retest for recruitment to Group D posts, for those candidates who had obtained minimum qualifying marks in first written examination against which large-scale irregularities and malpractices were noticed, was subject matter of consideration. The High Court interfered with the decision against which the appeal was filed. The Apex Court held that the decision of the High Court was not justified. The Apex Court had occasion to consider the Wedenesbury and proportionality principle. Following was laid down in paragraphs 18, 41, 42 and 43:
"18. We are, in this case, primarily concerned with the question whether the High Court was justified in interfering with the decision taken by the Board in conducting a re-test for those who had obtained minimum qualifying marks in the first written test and directing the Board to go ahead with the recruitment process on the basis of first written test against which there were serious allegations of irregularities and malpractices. When this matter came up for admission before this Court on 20.01.2006, this Court permitted the Board to declare the result of the second test and proceed to appoint the selected candidates, however, it was ordered that the appointments made be subject to the result of these appeals. We are informed that candidates who got qualified in the re-test were already appointed and have joined service.
41.We have already indicated the three alternatives available to the decision- maker (Board) when serious infirmities were pointed out in the conduct of the first written test. Let us examine which was the best alternative, the Board could have accepted applying the test of Wednesbury unreasonableness. Was the decision taken by the Board to conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test so unreasonable that no reasonable authority could ever have decided so and whether the Board before reaching that conclusion had taken into account the matters which they ought not to have taken into account or had refused to take into account the matters that they ought to have taken into account and the decision taken by it was so unreasonable that no reasonable authority could ever have come to it? Judging the decision taken by the Board applying the standard laid down in the Wednesbury principle unreasonableness, the first alternative that is the decision to cancel the entire written test and to conduct a fresh written test would have been time consuming and expensive. Initially 10,02,909 applications were received when advertisement was issued by the Board out of which 5,86,955 were found to be eligible and call letters were sent to them for appearing in the written test held at various centres. 3,22,223 candidates appeared for the written test, out of which 2690 were selected. Further the candidates who had approached the Court had also not opted that course instead many of them wanted to conduct a re-test for 2690 candidates, the second alternative. The third alternative was to go ahead with the first written test confining the investigation to 62 candidates against whom there were serious allegations of impersonation. The Board felt in the wake of the vigilance report and the reports of the CBI, it would not be the best option for the Railway Administration to accept the third alternative since there were serious allegations of malpractices against the test. From a reasonable man's point of view it was felt that the second option i.e. to conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test was the best alternative.
42. We will now apply the proportionality test to three alternatives suggested. Principle of proportionality, as we have already indicated, is more concerned with the aims of the decision maker and whether the decision maker has achieved the correct balance. The proportionality test may require the attention of the Court to be directed to the relative weight according to interest and considerations. When we apply that test and look at the three alternatives, we are of the view that the decision maker has struck a correct balance in accepting the second alternative. First alternative was not accepted not only because such a process was time consuming and expensive, but nobody favoured that option, and even the candidates who had approached the court was more in favour of the second alternative. Applying the proportionality test also in our view the Board has struck the correct balance in adopting the second alternative which was well balanced and harmonious.
43. We, therefore hold, applying the test of Wednesbury unreasonableness as well as the proportionality test, the decision taken by the Board in the facts and circumstances of this case was fair, reasonable, well balanced and harmonious. By accepting the third alternative, the High Court was perpetuating the illegality since there were serious allegations of leakage of question papers, large scale of impersonation by candidates, mass copying in the first written test."
The Apex Court approved the decision of the Railway Board by which retest was directed.
In the present case, no one has challenged the decision of the High Powered Committee and the decision of the State Government not to cancel the result of the Teacher Eligibility Test-2011. The said judgment also thus does not help the State in the present case.
The next judgment relied on by Shri C.B. Yadav, learned Additional Advocate General is in Madhyamic Shiksha Mandal,M.P. Vs. Abhilash Shiksha Prasar Samity & Ors, (1998) 9 SCC 236. In the said case, examination was cancelled by the Board on the report of the Naib Tehsildar that the students were found copying. The Apex Court upheld the decision of the Board for cancelling the entire result and set-aside the judgment of the High Court.
The next judgment relied on by Shri C.B. Yadav, learned Additional Advocate General is in The Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors, 1970 (1) SCC 648. In the said case, the Apex Court also held that when the examination was vitiated by adoption of unfair means on a mass scale it was wrong to insist that the board must hold a detailed inquiry into the matter and examine each individual case. Following was laid down in paragraph 13:
"13.This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held. Must the Board give an opportunity to all the candidates to represent their cases ? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go."
Shri C.B. Yadav, learned Additional Advocate General further submitted that it is within the power of the State to amend the rules even if the process of selection has begun. He has placed reliance on the judgment of the Apex Court in State of M.P. & Ors Vs. Raghuveer Singh Yadav & Ors, (1994) 6 SCC 151. In the said case it was held by the Apex Court that the State is entitled to withdraw the notification by which it had previously notified the recruitment and to issue a fresh notification on the basis of correction by amended rules. He has further placed reliance on the judgment of the Apex Court in Yogesh Kumar & Ors Vs. Govt. of NCT, Delhi & Ors (2003) 3 SCC 548. The Apex Court in the said case laid down that that it is open to the recruitment authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made.
The case of Devendra Singh (supra) has already been noted above. The last case relied on by Shri C.B. Yadav, learned Additional Advocate General is Union of India Vs. Pushpa Rani & Ors, 2008 (9) SCC 242. The Apex Court in the said case laid down that the matter relating to source/mode of recruitment and qualifications, criteria of selection and evaluation of service records of the employees falls within the exclusive domain of the employer. It was further held by the Apex Court that the judicial review comes into play only after the State's action is contrary to constitutional or statutory provision. Following was laid down in paragraph 37.
"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
There cannot be any dispute to the proposition as noted above. Present is not a case where the Court is determining the methodology of the recruitment or laying down the criteria for selection. The issue is as to whether the State Government which having adopted the criteria for selection as laid down by the National Council for Teacher Education, could have changed the criteria for selection of teachers arbitrarily, more so, when the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education are binding on the State.
As noted above, the learned Single Judge has held in the impugned judgment that after the start of process of selection it was not open for the State to change the criteria for selection. Reliance has been placed by the learned Single Judge on the judgment of P. Mahendran & Ors Vs. State of Karnataka & Ors, AIR 1990 SC 405.
Shri Ashok Khare, learned Senior Counsel, appearing on behalf of the appellants has placed reliance on two judgments of the Apex Court in A.A. Calton Vs. Director of Education & Anr, (1983) 3 SCC 33 and N.T. Devin Katti Vs. Karnataka Public Service Commission & Ors, (1990) 3 SCC 157, for the proposition that the 15th amendment rules would be applicable to selection proceedings initiated subsequent to said rules.
Shri Rahul Agarwal placed reliance on the judgment of the Apex Court in Tej Prakash Pathak & Ors Vs. Rajasthan High Court & Ors, (2013) 4 SCC 540. In the said case the question as to whether the procedure for selection can be changed by the State, has been referred to a larger bench for an authoritative pronouncement. Noticing the relevant judgments, the Apex Court in paragraph 15 has observed following:
"15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the "rules of the game" insofar as the prescription of eligibility criteria is concerned as was done in the case of C. Channabasavaiah v. State of Mysore [AIR 1965 SC 1293] etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the "rules of the game" stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."
As noted above, we having already considered the 15th amendment rules, and having come to the conclusion that the 15th amendment rules being arbitrary and unreasonable is unsustainable, it is not necessary to enter into the issues as to whether the State could have amended the Rules, 1981 after the start of the process of selection.
In view of the foregoing discussions, we conclude that the decision of the State Government to change the criteria of selection by restoring the criteria of selection as prevalent prior to 12th amendment rules was not in conformity with law. The 15th amendment rules, in so far as Rule 14(3) as well as the Government Order dated 31.8.2012 were also not sustainable.
Reliefs.
Now comes the question as to what reliefs the appellants are entitled to. It is to be noted that the learned Single Judge has denied the reliefs to the appellants only on the ground that the advertisement dated 30.11.2011 mentions the posts of Teachers as "Trainee Teachers", whereas there is no cadre of Trainee Teachers under the Rules, 1981, the notification itself was bad. The learned Single Judge although accepted the case of the appellants that the decision of the Government by Government Order dated 26.7.2012 was not in conformity with law, but denied the relief giving following reasons:
"However, no relief can be granted to the petitioners, inasmuch 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."
We having already held that the advertisement dated 30.11.2011, for selection of teachers on 72825 posts was advertised for existing cadre under the Rules, 1981. 72825 vacancies in the existing cadre having already been determined, the reason for denying the reliefs to the petitioners/appellants by the learned Single Judge is unsustainable. The appointment of candidates having B.Ed qualification with certain percentage of marks in the graduation is a relaxation granted under the notification dated 23.8.2010 for a limited period. The Central Government vide its notification dated 10.9.2012 issued under Section 23 (2) has extended the period of candidates mentioned in para 3 sub-clause (1) of the notification dated 23.8.2010 till 31.3.2014. The State Government has to complete the process of selection and make appointment of the candidates within the time allowed by the Central Government.
There are about 1.25 lacs primary schools in the State of U.P. run by the U.P. Basic Shiksha Parishad. 2.70 lacs posts of teachers being lying vacant, the State Government cannot be said to have complied its statutory obligation as laid down under the Act, 2009. The process for recruitment of B.Ed teachers against the 72825 vacancies was initiated vide advertisement dated 30.11.2011 after amending the rules in accordance with law.
By an order dated 04.1.2012, the process for recruitment of B.Ed teachers was stayed by this Court in Writ Petition No.76039/2011, which petition has already been dismissed by this Court. There is thus no legal impediment in proceeding with the selection initiated by the advertisement dated 30.11.2011 as modified on 20.12.2011.
In the result all the Special Appeals are allowed to the following extent:
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.
The parties shall bear their own costs.
Order Date :- 20.11.2013
LA/Sandeep
Source :
http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2927338
