# Alok Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1737
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-07
- **Case number:** Service Single No. 6000 of 2019
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-kumar-anr-v-state-of-u-p-ors-45675
- **Pages:** 27

## Headnote

C.S.C., Ajay Kumar, Durga Prasad Shukla

A. Service - Appointment/Recruitment -
Eligibility
criteria/conditions
-
Uttar
Pradesh
Basic
Education
(Teachers)
Service (Twentieth Amendment) Rules,
2017: Rules 2(w), 2(x), 2(y); Uttar
Pradesh
Basic
Education
(Teachers)
Service Rules, 1981 - The question before
the Court is as to whether once the
selection process had commenced, the
eligibility
marks
prescribed
to
be
obtained by the candidates belonging to
respective categories could be permitted
to be changed after the last date fixed for
receipt of applications.

The rules of the game cannot be changed
at the verge of or towards the end of the
game. Change of criteria in the midst of
selection process is not permissible -
Once the selection/recruitment process starts
no change can be made in the eligibility
conditions after the last date fixed for receipt of
applications. The rules which are prevailing at
the time of issue of advertisement/guidelines
would be considered and not the subsequent
amendment. (Para 42, 43, 46, 47, 59 & 63)

B. Violation of natural justice - "Useless
formality theory" - If on admitted or
indisputable
factual
position,
only
one
conclusion is possible the Court need not issue
a writ merely because there is violation of
principle of natural justice, as in no opportunity
of hearing was given to petitioners. There was
no justification for the issue of the GO dated
21.05.2018
taking
into
consideration
the
settled proposition of law and as such, no
infirmity was found in the GO dated 20.02.2019
being issued to withdraw the GO dated
21.05.2018. (Para 54, 55, 60 & 70)

C. Principle of legitimate expectation -
The legitimacy of expectation can be
inferred only if it is founded on the
sanction
of
law
or
custom
or
an
established procedure - Whenever the
question of legitimate expectation arises, it is
to be determined not according to the
claimant's perception but in larger public
interest
wherein
other
more
important
considerations may outweigh what would
otherwise have been the legitimate expectation
of the claimant. In the present case, issue of
GO dated 21.05.2018 lowering the eligibility
marks would run against the settled proposition
of law as there cannot be said to be any
sanction or custom by the Government to
reduce
the
eligibility
marks
after
the
commencement of selection process. (Para 65
& 66)

Writ Petitions dismissed. (E-4)

Precedent followed: -

## Text

_Characters 0–39,831 of 92,305. This is a partial read: ask again with offset=39831 for what follows._

1738 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, by virtue of Rule 3, Rules, 1981,
are not applicable to the case of appellant.

21. Learned counsel for appellant
drew attention of this Court to U. P.
Recognized Basic Schools (Recruitment
and Conditions of Service of Teachers and
Other Conditions) Rules, 1975 (hereinafter
referred to as "Rules, 1975") which came
into force on 01.07.1975 (Except Rule 11
which
was
made
effective
from
20.05.1975) when Rules were published in
U. P. Gazette (Extra-Ordinary). Aforesaid
Rules, 1975 are applicable to every
recognized Schools as provided in Rule 3
and "Recognized School" is defined in
Rule 2 (e) as under :

"2(e).
"Recognised
School"
means any Junior Basic School, not
being an institution belonging to or
wholly maintained by the board or any
local body, recognised by the Board
before the commencement of these rules
for imparting education from Class I to
V."
(emphasis added)

22. Definition of "Recognised
School" clearly shows that it is not
applicable to a Junior Basic School which
belongs to or wholly maintained by Board
or any local body. Rules, 1975 are
applicable to other Junior Basic Schools
which are recognised by Board. Infact
Junior Basic School i.e. school imparting
education upto Class V which belong to or
wholly maintained by Board or any local
body are excluded from application of
Rules, 1975.

23. Reliance is also placed on U. P.
Recognised Basic Schools (Junior High
Schools)(Recruitment and Conditions of
Service
of
Teachers)
Rules,
1978
(hereinafter referred to as "Rules, 1978")
which came into force on 13.03.1978 i.e.
the date on which said Rules were
published in U. P. Gazette (ExtraOrdinary). Here also we find that by virtue
of Rule 2 (e), these are applicable only to
'Junior High School' i.e. school imparting
education from Class VI to VIII while
School in question is clearly a Junior Basic
School as it is imparting education from
Class I to V, as is evident from para 2 of
affidavit filed along with stay application
in this appeal, therefore, aforesaid Rules
are also not applicable.

24. In absence of any provision as
relied by appellant, we have no manner of
doubt that appellant having been appointed
in 1978 by E.O., NPP, SKB continued to
be an employee of said local body and age
of retirement, therefore, in absence of any
other provision applicable to appellant,
would be such as were applicable to
employees of NPP, SKB. Hence, appellant
has rightly been informed about date of
retirement on which she was to complete
60 years of age i.e. 31.07.2004 as the
Rules applicable to employees of NPP,
SKB.

25. We, therefore, find no legal or
otherwise flaw or error in the judgment of
learned Single Judge so as to warrant
interference in this appeal

26. Appeal lacks merit. Dismissed
accordingly.
----------
(2020)1ILR 1737

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.01.2020

BEFORE
THE HON'BLE ABDUL MOIN, J.
1 All. Smt. Narayani Yadav Vs. Nagar Palika Parishad Sikohabad, Dist. Firozabad & Ors. 1739
Service Single No. 6000 of 2019
Connected With
56 Other Service Single Cases

Alok Kumar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sudeep Seth, Onkar Singh Kushwaha

Counsel for the Respondents:
C.S.C., Ajay Kumar, Durga Prasad Shukla

A. Service - Appointment/Recruitment -
Eligibility
criteria/conditions
-
Uttar
Pradesh
Basic
Education
(Teachers)
Service (Twentieth Amendment) Rules,
2017: Rules 2(w), 2(x), 2(y); Uttar
Pradesh
Basic
Education
(Teachers)
Service Rules, 1981 - The question before
the Court is as to whether once the
selection process had commenced, the
eligibility
marks
prescribed
to
be
obtained by the candidates belonging to
respective categories could be permitted
to be changed after the last date fixed for
receipt of applications.

The rules of the game cannot be changed
at the verge of or towards the end of the
game. Change of criteria in the midst of
selection process is not permissible -
Once the selection/recruitment process starts
no change can be made in the eligibility
conditions after the last date fixed for receipt of
applications. The rules which are prevailing at
the time of issue of advertisement/guidelines
would be considered and not the subsequent
amendment. (Para 42, 43, 46, 47, 59 & 63)

B. Violation of natural justice - "Useless
formality theory" - If on admitted or
indisputable
factual
position,
only
one
conclusion is possible the Court need not issue
a writ merely because there is violation of
principle of natural justice, as in no opportunity
of hearing was given to petitioners. There was
no justification for the issue of the GO dated
21.05.2018
taking
into
consideration
the
settled proposition of law and as such, no
infirmity was found in the GO dated 20.02.2019
being issued to withdraw the GO dated
21.05.2018. (Para 54, 55, 60 & 70)

C. Principle of legitimate expectation -
The legitimacy of expectation can be
inferred only if it is founded on the
sanction
of
law
or
custom
or
an
established procedure - Whenever the
question of legitimate expectation arises, it is
to be determined not according to the
claimant's perception but in larger public
interest
wherein
other
more
important
considerations may outweigh what would
otherwise have been the legitimate expectation
of the claimant. In the present case, issue of
GO dated 21.05.2018 lowering the eligibility
marks would run against the settled proposition
of law as there cannot be said to be any
sanction or custom by the Government to
reduce
the
eligibility
marks
after
the
commencement of selection process. (Para 65
& 66)

Writ Petitions dismissed. (E-4)

Precedent followed: -

1. K. Manjusree Vs. State of Andhra Pradesh,
(2008) 3 SCC 512 (Para 15, 36, 52, 56 & 57)

2. Tej Prakash Pathak and another Vs.
Rajasthan High Court and others (2013) 4 SCC
540 (Para 15, 17, 49, 50 & 56)

3. M.C. Mehta Vs. Union of India and others,
(1999) 6 SCC 237 (Para 33, 54, 55 & 70)

4. Canara Bank Vs. V.K. Awasthy, (2005) 6 SCC
321 (Para 33, 55 & 70)

5. Gopal Krushna Rath Vs. M.A.A.Baig (Dead) by Lrs
and others, (1999) 1 SCC 544 (Para 36, 52 & 57)

6. T. Nadu Computer SC B.Ed. G.T. Welf. Society
Vs. Higher Sec. Scl. Computer Tech. Assn. and
others, (2009) 14 SCC 517 (Para 42, 46, 47 & 48)

7. State of Bihar and others Vs. Mithilesh
Kumar, (2010) 13 SCC 467 (Para 43 & 47)

8. Bhupinderpal Singh and others Vs. State of
Punjab and others, (2000) 5 SCC 262 (Para 44
&
47)
1740 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Ashok Kumar Sharma and others Vs.
Chander Shekhar and another, (1997) 4 SCC
18 (Para 45 & 47)

10. Bishnu Biswas and others Vs. Union of
India (UOI) and others, (2014) 5 SCC 774
(Para 46 & 47)

11. Food Corporation of India Vs. Kamdhenu
Cattle Field Industry, (1993) 1 SCC 71 (Para
65)

12. Union of India Vs. Hindustan Development
Corporation, (1993) 3 SCC 499 (Para 65)

13. Mohd. Raisul Islam and others Vs. Gokul
Mohan Hazarika and others, (2010) 7 SCC 560
(Para 71)

Precedent distinguished: -

1. Executive Officer, Arthanareswarar Temple
Vs. R. Sathyamoorthy and others, (1999) 3 SCC
115 (Para 21 & 64)

2.
Kalabharati
Advertising
Vs.
Hemand
Vimalnath Narichania and others, (2010) 9 SCC
437 (Para 21 & 64)

3. K.S. Bhoopathy and others Vs. Kokila and
others, (2000) 5 SCC 458 (Para 21, 64)

4. Yogesh Yadav Vs. Union of India, (2013) 14
SCC 623 (Para 20 & 62)

5. Rajya Sabha Secretariat and others Vs.
Subhash Baloda and others, (2013) 5 SCC 169
(Para 24, 68 & 69)

6. Barot Vijaykumar Balakrishna and others Vs.
Modh Vinaykumar Dasrathlal and others,
(2011) 7 SCC 308 (Para 24 & 68)

7. State of U.P and Ors Vs. Anand Kumar
Yadav, (2018) 13 SCC 560 (Para 27 & 71)

8. Shree Chamundi Mopeds Ltd. Vs. Church or South
India Trust Association, (1992) 3 SCC 1 (Para 16 & 60)

Precedent cited: -
1. Union of India and another Vs. Lieutenant
Colonel P.K. Choudhary and others, (2016) 4
SCC 236 (Para 22)
2. Shankarsan Dash Vs. Union of India, (1991)
3 SCC 47 (Para 33)

3. S.S. Balu and another Vs. State of Kerala
and others, (2009) 2 SCC 479 (Para 33)

4. Union of India Vs. Pushpa Rani and others,
(2008) 9 SCC 242 (Para 33)

5. Union of India and others Vs. S. Vinodh
Kumar and others, (2007) 8 SCC 100 (Para 33)

6. Ramesh Chandra Shah and others Vs. Anil
Joshi and others, (2013) 11 SCC 309 (Para 33)

Petition challenges Government Order
dated 20.02.2019, by which GO dated
21.05.2018,
changing
the
eligibility
criteria was made redundant.

(Delivered by Hon'ble Abdul Moin,J.)

1. Heard Sri S.K. Kalia, Senior
Advocate, assisted by Sri Avdhesh Shukla
and Sri Sameer Kalia, Sri Jai Deep Narain
Mathur, Senior Advocate, assisted by Sri
Devendra Upadhyay, Sri Sandeep Dixit,
Senior Advocate, assisted by Sri Manoj
Mishra, Sri Sudeep Seth, Senior Advocate,
assisted by Sri Onkar Singh and Ms. Ishita
Yadav,
Dr.
L.P.
Mishra,
Sri
Y.S.
Srivastava,
learned
counsel
for
the
petitioners in this writ petition and other
connected matters, Sri Kuldeep Pati
Tripathi, learned Additional Advocate
General, assisted by Sri Prafulla Yadav
and
Sri
Pratyush
Tripathi,
learned
Standing Counsel appearing for Staterespondents and Sri Ajay Kumar, learned
counsel
appearing
for
respondent
no.3/Uttar Pradesh Basic Education Board.

2. There is consensus at the Bar
between the counsel for the parties that as
all the cases pertain to a common issue and
these writ petitions have been heard
together, as such they be decided by a
common judgment. Accordingly, the facts
1 All. Alok Kumar & Anr. Vs. State of U.P. & Ors.
1741
of Writ Petition (S/S) No.6000 of 2019 are
being considered for deciding this bunch
of writ petitions.

3. By means of the present petition,
the petitioners have prayed for quashing of
the Government Order dated 20.2.2019, a
copy of which is Annexure-1 to the writ
petition. Further prayer is for a mandamus
commanding the respondents to declare
the result of the Assistant Teacher
Recruitment Examination-2018 on the
basis
of
Government
Order
dated
21.5.2018, a copy of which is Annexure-2
to the writ petition.

4. Brief facts as set forth by the
petitioners are that a Government Order had
been issued by the respondents giving
guidelines for holding an examination, namely,
Assistant Teacher Recruitment Examination2018 (hereinafter referred to as the 2018
Recruitment), a copy of which is Annexure-4
to the writ petition. A notification was issued
on 23.1.2018, a copy of which is Annexure-6
to the writ petition, giving the schedule for
applying for the 2018 Recruitment by eligible
candidates in terms of the guidelines dated
9.1.2018 and the Government Order dated
17.1.2018, a copy of which is Annexure-5 to
the writ petition. The Government Order dated
17.1.2018, as has been referred to in the
notification dated 23.1.2018, gave the schedule
for issue of advertisement, dates of submission
of applications etc. Subsequent thereto, the
respondents issued another time schedule
dated 7.5.2018, a copy of which is Annexure
S-1 to the supplementary affidavit, by which
the last date fixed for receipt of applications
was specified as 17.5.2018 and the candidates
could make correction on-line in their
application by 21.5.2018. The date of
examination was also specified as 27.5.2018. It
is contended that as per para 7 of the guidelines
that were part of the Government order dated
9.1.2018, it was provided that the minimum
marks to be obtained by a candidate, so far as
they pertain to general and other backward
category candidates, was 67 marks out of 150
marks i.e 45 percent while the minimum
marks for Scheduled Caste/ Scheduled Tribe
category was 60 marks out of 150 marks i.e 40
per cent. Even before the examination could be
held on 27.5.2018, the respondents issued a
Government Order dated 21.5.2018, a copy of
which is Annexure-2 to the writ petition, by
which the marks, so far as they pertained to
general
and
other
backward
category
candidates, were reduced to 33 percent while
for other categories i.e. the reserved categories
was reduced to 30 per cent.

5. The said Government Order was
challenged by one Sri Diwakar Singh by
filing Writ Petition No.20404 of 2018
before this Court. The basic ground to
challenge the said Government Order was
that once the selection process had
commenced and the date of examination
was
fixed
as
27.5.2018
then
the
respondents while issuing the Government
Order dated 21.5.2018 could not have
changed the selection criteria.

6. This Court vide order dated
24.7.2018 restrained the respondents from
implementing the guidelines issued under
the Government Order dated 21.5.2018 in
the selection proceedings initiated in
pursuance to the Government order dated
9.1.2018 and the advertisement issued in
pursuance thereto. Copy of the interim
order dated 24.7.2018 is Annexure-10 to
the writ petition.

7. Being aggrieved with the order
dated 24.7.2018, a bunch of special
appeals leading being Special Appeal
No.432 of 2018 In re: Avnish Kumar and
others vs. Shri Diwakar Singh and others
1742 INDIAN LAW REPORTS ALLAHABAD SERIES
was filed before this Court. This Court
vide judgment and order dated 24.9.2018,
a copy of which is Annexure-21 to the writ
petition, remanded back the matter to the
Hon'ble Single Judge to decide the same
finally as early as possible. It is also
contended that as the selection had
proceeded, the State Government issued a
Government order dated 08.08.2018, a
copy of which is annexure 11 to the
petition resolving to comply with the
interim order dated 24.7.2018 and granting
permission to prepare and declare the
result as per the guidelines dated 9.1.2018.
In pursuance thereof, the result was
declared on 13.8.2018.

8. It has also been stated in paragraph
16 of the writ petition that out of 68500
vacant posts only 41556 candidates
qualified as per the minimum qualifying
marks prescribed as per the guidelines
dated 9.1.2018. It has also been contended
that the petitioners have not qualified as
per the qualifying marks prescribed as per
the guidelines dated 9.1.2018 but may
qualify as per the lowered qualifying
marks prescribed as per the Government
order dated 21.5.2018.

9.

Subsequent
thereto,
the
respondents issued the impugned order
dated 20.2.2019, a copy of which is
Annexure-1 to the writ petition, by which
the Government Order dated 21.5.2018
was made redundant. It is contended that
through an order dated 28.2.2019 passed in
a bunch of writ petitions the leading being
Writ Petition (S/S) No.20404 of 2018, all
of which had been filed challenging the
order dated 21.5.2018, the said petitions
were dismissed as infructuous keeping in
view the order dated 20.2.2019 but it was
left open to the affected parties to raise all
pleas and grounds in the subsequent writ
petition wherein the Government Order
dated 20.2.2019 is under challenge, if any.

10. It is argued that the Government
on 09.11.2017 has issued the Uttar Pradesh
Basic
Education
(Teachers)
Service
(Twentieth Amendment) Rules, 2017
(hereinafter referred to as "Twentieth
Amendment") to amend the Uttar Pradesh
Basic Education (Teachers) Service Rules,
1981 (hereinafter referred to as "Rules,
1981") which provide in Rule 2 (w) as
under:-

"2(w).
"Assistant
Teacher
Recruitment Examination"means a written
examination conducted by the Government
for recruitment of a person in junior basic
schools run by Basic Shiksha Parishad.

11. Likewise Rule 2 (x) reads as
under:-

"2(x). "Qualifying Marks of
Assistant
Teacher
Recruitment
Examination"means such minimum marks
as may be determined from time to time by
the Government."

12. The Rule 2 (y) reads as under:-

"2(y). "Guidelines of Assistant
Teacher Recruitment Examination"means
such guidelines as may be determined
from time to time by the Government."

13. Placing reliance on Rule 2 (x) it
is contended that qualifying marks of
Assistant
Teachers
Recruitment
Examination would mean such minimum
marks as may be determined from time to
time by the Government and thus once
such power is vested in the Government to
determine
the
minimum
marks
1 All. Alok Kumar & Anr. Vs. State of U.P. & Ors.
1743
consequently once the Government issued
the Government order dated 21.05.2018
revising and lowering the marks, as such
the same are deemed to have been issued
by exercising the power vested in the
Government in terms of Rule 2 (x) and
thus validly no challenge could be raised
to the same and once the marks had been
determined, it could not be said that the
same amounted to change in the rule of the
game so as to cause any grievance to any
of the candidates and thus the order dated
21.05.2018 having been validly issued,
there was no occasion for the respondents
to have withdrawn the said order through
the impugned Government order dated
20.02.2019.

14. It is also argued that the process of
recruitment would only start when the actual
recruitment for Assistant Teachers is held i.e
after the result of the qualifying examination
i.e 2018 Recruitment and thus once no
recruitment was involved in the qualifying
examination that was held by the respondents,
as such merely because the Government
exercising the power vested in it under Rule 2
(x) of the Twentieth Amendment having
validly exercised the said power and the 'game'
was still to begin after the persons had
qualified in the said examination and attained
eligibility for the purpose of finally staking
their claim for their appointment in terms of
the recruitment still to be conducted, as such
there was no occasion for this Court to have
passed the interim order dated 24.07.2019 and
thereafter there was no occasion for the
Government to have withdrawn the same
through
the
Government
order
dated
20.02.2019 based on the said interim order.

15. Another argument is that the
interim order dated 24.07.2018 was passed
on the basis of the judgment of the Apex
Court in the case of K.Manjusree Vs.
State of Andhra Pradesh reported in
(2008) 3 SCC 512 which itself has been
held to be per incuriam in a subsequent
judgment of the Apex Court in the case of
Tej Prakash Pathak and Anr Vs.
Rajasthan High Court and Ors reported
in (2013) 4 SCC 540 and the respondents
while issuing the impugned order dated
20.02.2019 having passed the said order
on the basis of the interim order which
resulted in the respondents proceeding
with the selection on the basis of the
earlier Government order and declaring
the result whereafter the Government
order
dated
21.05.2018
was
made
redundant meaning thereby that the very
base of the order dated 20.02.2019 is the
interim
order
of
this
Court
dated
24.07.2018 which itself being based on a
judgment of the Apex Court being held
per incuriam meaning thereby that the
order dated 20.02.2019 is itself vitiated in
the eyes of law.

16. Placing reliance on the judgment
of the Apex Court in the case of Shree
Chamundi Mopeds Ltd vs Church Or
South India Trust Association reported
in (1992) 3 SCC 1 it is contended that the
order dated 24.07.2018 of this Court was
only an interim order meaning thereby that
the Court was still to pronounce on the
validity of the Government order dated
21.05.2018 and thus merely because the
Government order dated 21.05.2018 had
been stayed by this Court, the same would
not
take
away
the
effect
of
the
Government
order
dated
21.05.2018
inasmuch as a distinction has to be made
between quashing of an order and stay of
operation of an order and thus by no
stretch of imagination could the interim
order of this Court dated 24.07.2018 have
been taken as a final order by the
respondents while proceeding to pass the
1744 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned
Government
order
dated
20.02.2019 in order to make redundant the
Government order dated 21.05.2018 the
validity of which was still to be tested by
this Court in a bunch of petitions.

17. Placing reliance on Tej Prakash
Pathak (supra) it is argued that it was not
the eligibility condition which had been
interfered with by the respondents with the
issue of the Government order dated
21.05.2018 rather a conscious decision
was taken by the Government while
issuing the Government order dated
21.05.2018 to reduce the minimum marks
which could validly be done by the
Government taking into consideration
Rule 2 (x) of the Twentieth Amendment.

18. It is also argued that no reasons
are forthcoming in the impugned order
dated 20.02.2019, apart from giving
reference to the interim order of this Court,
as to why the respondents thought it fit to
make
the
Government
order
dated
21.05.2018 redundant and as such any
reason that may be taken in the counter
affidavit cannot be considered by this
Court while going into the validity and
veracity of the impugned order dated
20.02.2019.

19. It is further argued that even if
the reduced marks would have resulted in
a large number of candidates qualifying in
the exam yet the merit of final selection
for
appointment
would
not
be
compromised as in terms of Rule 14 (1) (c)
(3) (a) of the Twentieth Amendment in
Rule, 1981, the name of the candidates in
the list prepared under Sub Rule (2) in
accordance with Clause (a) of Sub Rule
(1) of Rule 14 has to be arranged in
accordance with the quality points and
weightage as specified in appendix (I).
The appendix (I) prescribes quality points
and weightage as per the percentage of
marks
in
the
Assistant
Teacher
Recruitment Examination to be taken as 60
percent of marks in the examination i.e
percentage of marks in the examination X
60/100. The percentage of marks in the
examination of BTC training, Graduation
Degree, Intermediate and High School
have also been indicated. Thus, in case a
candidate qualifies the Assistant Teacher
Recruitment Examination with a lesser
percentage, lesser quality points would
contribute
towards
the
selection
of
candidate as provided under the Twentieth
Amendment whereby reducing his merit.

20. Reliance has also been placed on
the judgment of the Hon'ble Supreme
Court in the case of Yogesh Yadav Vs.
Union of India reported in (2013) 14 SCC
623 to contend that bench mark could be
fixed even after the examination has been
held which would be permissible in the
eyes of law and the same would not
amount to change of the rule of the game
after the examination commenced.

21.

Learned
counsel
for
the
petitioners has also argued that once this
Court was seized of the matter in Writ
Petition (S/S) No.20404 of 2018 and other
connected matters wherein the validity of
the order dated 21.5.2018 had been raised,
consequently
the
said
order
dated
21.5.2018 could not have been withdrawn
by the respondents during pendency of the
aforesaid writ petitions. In this regard,
reliance has been placed upon the
judgment of the Apex Court in the case of
Executive
Officer,
Arthanareswarar
Temple vs. R. Sathyamoorthy and others
reported in (1999)3 SCC 115, Kalabharati
Advertising
vs.
Hemand
Vimalnath
Narichania
and
others
reported
in
1 All. Alok Kumar & Anr. Vs. State of U.P. & Ors.
1745
(2010)9 SCC 437 and K.S. Bhoopathy
and others vs. Kokila and others reported
in (2000)5 SCC 458.

22. Learned counsel for the petitioners also
argue that once the Government Order dated
21.5.2018 had been issued lowering the qualifying
marks from 45 to 33 percent for general and other
backward category candidates and from 40 to 30
percent for other candidates i.e. reserved category
candidates, as such the petitioners have acquired a
legitimate right and expectation for being
considered in terms of the modified qualifying
marks. In this regard, reliance has been placed on
the judgment of the Apex Court in the case of
Union of India and another vs. Lieutenant
Colonel P.K. Choudhary and others reported in
(2016)4 SCC 236.

23. Another ground taken on behalf
of the petitioners is that as approximately
27713 posts are still lying vacant, as such
it would be equitable for this Court to
direct the respondents to fill in the
remaining vacancies with the relaxed
qualifying
marks
i.e.
as
per
the
Government Order dated 21.5.2018 itself.

24. As regards the ground on which
the interim order dated 24.7.2018 had been
passed by this Court in Writ Petition (S/S)
No.20404 of 2018 i.e. with the issue of the
Government Order dated 21.5.2018 the
rules of the game having been changed,
reliance has been placed on the judgment
of the Apex Court in the case of Rajya
Sabha Secretariat and others vs. Subhash
Baloda and others reported in (2013)5
SCC
169
and
Barot
Vijaykumar
Balakrishna
and
others
vs.
Modh
Vinaykumar
Dasrathlal
and
others
reported in (2011)7 SCC 308 to assert that
amended or modified rules can be
considered after the selection process has
commenced.

25. It is also argued on behalf of the
petitioner that no valid reason is forthcoming
in the order dated 20.02.2019 for withdrawal
of Government order dated 21.05.2018
inasmuch as the grounds indicated in the said
order for making redundant the Government
order dated 21.05.2018 are that in compliance
with the interim order dated 24.07.2018, the
Government order dated 08.08.2018 had been
issued for adhering to the Government order
dated
09.01.2018
which
provided
the
eligibility marks of 45 percent and 40 percent
for the General and Reserved Category
candidates and for proceeding with the
selection accordingly and that as the result has
been declared subsequent thereto, as such the
Government order dated 21.05.2018 has
become redundant. It is contended that once
the entire action of issue of the Government
order dated 08.08.2018 has been taken in
pursuance to the interim order dated
24.07.2018 and even the result declaration has
taken place in pursuance to the Government
order dated 08.08.2018 and ultimately Writ
Petition No. 20404 (SS) of 2018 had been
dismissed as infructuous meaning thereby that
the entire action had been taken on the basis of
the interim order and thus once the lis was
already before this Court, consequently there
was no occasion for the respondents to have
passed the order dated 08.08.2018 and to have
proceeded further with the selection and thus
merely because the result has been declared
would not make the Government order dated
21.05.2018 redundant as contended in the
impugned order dated 20.02.2019. Thus, the
grounds taken in the said order cannot be said
to be sufficient and sustainable in the eyes of
law.

26. Another ground which has been
taken on behalf of the petitioners is that
the Government order dated 09.01.2018
had been issued after the Twentieth
Amendment in the Rules, 1981 which
1746 INDIAN LAW REPORTS ALLAHABAD SERIES
provided in Rule 2 (w) for an Assistant
Teacher Recruitment Examination and further
the academic qualification, so far as it pertains
to the post of Assistant Master and Assistant
Mistresses of Junior Basic Schools provided
the eligibility condition of a candidate as
having
passed
the
Assistant
Teacher
Recruitment Examination. An amendment was
also made in Appendix I in the Rules, 1981 by
way of the Twentieth Amendment which gave
quality points for a candidate having passed
the
Assistant
Teacher
Recruitment
Examination. By the 22nd Amendment dated
15.03.2018 made in the Rules, 1981, the
academic qualification, as was introduced in
Rule 8 by the Twentieth Amendment, was
done away with so far as it pertains to a teacher
passing the Assistant Teacher Recruitment
Examination, however the said condition was
added as Rule 14 (1) (b) by indicating that for
every notified vacancy under Rule 14 (1) (a) of
the Rules for Recruitment of Assistant Master
or Assistant Mistresses of Junior Basic School,
a separate Assistant Teacher Recruitment
Examination shall be conducted by the
Government. Rule 14 (1) (a) provides for
determination of vacancies as also the number
of vacancies to be reserved and applications to
be
invited
from
candidate
possessing
prescribed training qualification and having
passed the Teacher eligibility test and Assistant
Teacher Recruitment Examination conducted
by the Government. It is thus argued that once
condition in Rule 8 was done away with in
terms of the 22nd Amendment, consequently
the Government order reducing the eligibility
marks for General and Reserved Category
candidates was correctly issued and hence
there could not be any occasion for the
respondent to withdraw the said Government
order.

27. Elaborating this, learned counsel
for the petitioners submit that the Apex
Court in the case of State of U.P and Ors
Vs. Anand Kumar Yadav reported in
(2018) 13 SCC 560 in a matter pertaining
to Shiksha Mitras has provided that as
regularization
of
Shiksha
Mitras
as
teachers is not permissible but at the same
time they ought to be given opportunity to
be considered for recruitment, if they have
acquired or they now acquire, the requisite
qualification in terms of advertisement for
recruitment for next two consecutive
recruitments by giving them suitable age
relaxation and some weightage for their
experience and considering this fact, the
Government order dated 21.05.2018 had
been issued reducing the marks and, as
such there cannot be said to be any
infirmity with the said Government order
on this ground also.

28. Per contra, Sri Kuldeep Pati
Tripathi, learned Additional Advocate
General assisted by Sri Prafful Yadav,
learned Standing counsel submits and
argues on the grounds as raised by the
petitioners as well as on the basis of the
averments
contained
in
the
counter
affidavit which has been filed in Writ
Petition No. 6313 (SS) of 2019 and has
been adopted in all other petitions that in
terms of the Twentieth Amendment in
Rules, 1981 which was introduced on
09.11.2017, Rule (2) (w), 2 (x) and 2 (y)
were introduced. Rule 2 (w) for the very
first time brought in the concept of
Assistant
Teacher
Recruitment
Examination for recruitment of a person in
Junior Basic Schools. Rule 2 (x) gave the
power to fix qualifying marks of Assistant
Teacher Recruitment Examination to be
determined from time to time by the
Government and Rule 2 (y) gave the
guidelines
of
Assistant
Teacher
Recruitment Examination as may be
determined from time to time by the
academic
authority.
The
Twentieth
Amendment to the Rules, 1981 also
1 All. Alok Kumar & Anr. Vs. State of U.P. & Ors.
1747
brought an amendment in Rule 8 of the
Basic Education Service Rules which
provided,
so
far
as
the
academic
qualification of Assistant Master and
Assistant Mistresses of Junior Basic
Schools was concerned, that they should
have
passed
the
Assistant
Teacher
Recruitment Examination conducted by
the Government. Appendix I which
pertains to quality points and weightage
for
selection
candidates
was
also
substituted to bring in the quality points by
introducing Assistant Teacher Recruitment
Examination marks also within the ambit
of
quality
points.
Taking
into
consideration the aforesaid amendments,
the Government order dated 09.01.2018
was issued giving the guidelines for the
purpose of holding Assistant Teacher
Recruitment Examination, 2018 for 68,500
vacancies. The said guidelines provided
the
procedure
for
submitting
of
applications by the candidates and Clause
7 of
the guidelines
prescribed
the
qualifying marks for the General and
Reserved Category candidates which were
45 percent for the General and Other
Backward Caste and 40 percent for the
Scheduled Caste and Scheduled Tribe
Candidates respectively i.e 87 out of 150
marks
and
60
out
of
150
marks
respectively. In terms of the guidelines
dated 09.01.2018 an advertisement for
holding 2018 Recruitment was issued on
23.01.2018 giving the schedule of online
registration from 25.01.2018. However,
subsequently another Government order
dated 07.05.2018 was issued by the
Government
giving
the
date
of
advertisement, the last date as to by when
the eligible candidate could apply for
appearing in the examination as well as the
date by which they could correct any error
in their application. In terms of the said
order dated 07.05.2018, the date of issue
of advertisement was fixed as 08.05.2018,
the
date
for
registration
of
online
applications was fixed from 14.05.2018,
while the last date fixed for receipt of
applications was fixed as 17.05.2018.
Those candidates who had applied and
finding an error in their applications, could
log in and correct any error in their
applications
by
21.05.2018.
The
examination was also notified to be held
on 27.05.2018. After the last date fixed for
receipt of application i.e 17.05.2018,
Government order dated 21.05.2018 was
issued
changing
and
reducing
the
qualifying marks as specified in Clause 7
of the guidelines issued vide Government
order dated 09.01.2018 and fixing them at
33 percent for General Category and Other
Backward Classes Candidate and 30
percent
for
Scheduled
Caste
and
Scheduled
Tribe
Reserved
Category
candidates. A Writ Petition No. 20404
(SS) of 2018 was filed challenging the said
Government order dated 21.05.2018 and a
detailed interim order was passed by this
Court staying the Government order dated
21.05.2018. After considering the entire
facts and circumstances, the Government
decided to proceed with the selection in
terms of the guidelines dated 09.01.2018
and on the basis of the qualifying marks
fixed in the said guidelines i.e 45 percent
and
40
percent
respectively.
It
is
contended that the said Government order
dated 08.08.2018 was issued not only in
pursuance to the interim order of this
Court but also after a conscious decision
had been taken to proceed with the
selection in terms of the Government order
dated 09.01.2018 and cut off marks fixed
therein. Thereafter, the result was declared
on 13.08.2018 and the process of issue of
the appointment letters to the selected
candidates
started
w.e.f
05.09.2018.
Subsequent thereto, as the selection had
1748 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeded in pursuance to the order dated
08.08.2018 and the process of issue of
appointment
letter
to
the
selected
candidates
had
also
started
w.e.f
05.09.2018, as such the order dated
20.02.2019 was passed withdrawing the
order dated 21.05.2018 which was again a
conscious decision that had been taken by
the respondents taking into consideration
the developments that had taken place in
the interregnum period.

29. Learned counsel appearing for the
respondents further argues that once the
petitioners
had
consciously
applied
in
pursuance
to
the
Advertisement
dated
23.01.2018
and
07.05.2018
by
which
applications were invited from eligible
candidate for the 2018 Recruitment and it was
specified that the same was being issued in
pursuance to the Government order dated
09.01.2018 and 17.01.2018 whereby the cut
off marks of 45 percent and 40 percent had
been fixed and the last date fixed for receipt of
applications was 17.05.2018 meaning thereby
that they were perfectly satisfied with the cut
off marks that had been fixed in terms of the
Government
order
dated
09.01.2018,
consequently, when the second Government
order dated 22.05.2018 was issued reducing
the cut off marks, it cannot be said that the
petitioners were sought to be put in any
disadvantageous position inasmuch as they had
consciously chosen to participate on the basis
of the cut off marks as specified in the
Government order dated 09.01.2018 and hence
reduction of marks through the subsequent
Government order and thereafter withdrawal
of the said Government order through the
impugned order dated 20.02.2019 would not
give them any right to assert to the contrary.

30. It is also contended that there has
been no violation of any rights of the
petitioners, inasmuch as they consciously
offered
to
participate
in
the
said
examination in terms of the cut off marks
issued through the order dated 09.01.2018
which had been fixed in consonance with
the Twentieth Amendment in Rules, 1981
that had been introduced w.e.f 09.11.2017
and exercising the power in terms of Rule
2 (x).

31. So far as the order dated
20.02.2019 is concerned, it is contended
that a perusal of the said order would itself
indicate that the order was occasioned on
account of the subsequent Government
order dated 08.08.2018 which had been
issued after conscious decision had been
taken by the respondents of proceeding
with the selection on the basis of the cut
off marks fixed through the Government
order dated 09.01.2018 and the result
having been declared thereafter and
accordingly
once
such
a
conscious
decision was taken, the impugned order
dated 20.02.2019 cannot be challenged on
the ground that it was only based on an
interim order passed by this Court.

32. So far as the 21st and 22nd
Amendments are concerned whereby Rule 8 and
Rule 14 had been amended, it is argued that the said
amendments being of a subsequent date would not
affect the guidelines that had been issued on
09.01.2018 considering the Twentieth Amendment
in the rules and it being a settled proposition of law
that an advertisement is to be issued taking into
consideration the prevalent rules and mere
amendment in the rules subsequently would not
render either the advertisement bad in the eyes of
law or make out any claim for amendment of the
said advertisement.

33.

Learned
counsel
for
the
respondents, in support of his submissions,
has placed reliance on the following
judgments:-
1 All. Alok Kumar & Anr. Vs. State of U.P. & Ors.
1749

(i) Union of India and others vs.
S. Vinodh Kumar and others reported in
(2007)8 SCC 100;

(ii) Shankarsan Dash vs. Union
of India reported in (1991)3 SCC 47.

(iii) S.S. Balu and another vs.
State of Kerala and others reported in
(2009)2 SCC 479.

(iv) Union of India vs. Pushpa
Rani and others reported in (2008)9 SCC
242.

(v) M.C. Mehta vs. Union of
India and others reported in (1999)6 SCC
237.

(vi) Ramesh Chandra Shah and
others vs. Anil Joshi and others reported
in (2013)11 SCC 309.

(vii) Canara Bank vs. V.K.
Awasthy reported in (2005)6 SCC 321.

34. Heard learned counsel appearing
for the contesting parties and perused the
records.

35. From a perusal of records it
comes out that the Twentieth Amendment
in the Rules, 1981 was issued on
09.11.2017 amending Rule 8 of the Rules,
1981 and making passing of Assistant
Teacher Recruitment Examination as an
eligibility condition for being appointed on
the post of Assistant Master and Assistant
Mistress of Junior Basic School. For the
said purpose, Rule 2 (w),(x) and (y) were
also introduced of which Rule 2 (w)
defines
the
"Assistant
Teacher
Recruitment Examination" as a written
examination conducted by the Government
for recruitment of a person in Junior Basic
Schools, Rule 2 (x) defines "Qualify marks
of
Assistant
Teacher
Recruitment
Examination" as such minimum marks as
may be determined from time to time by
the Government and Rule 2 (y) defines
"Guidelines
of
Assistant
Teacher
Recruitment
Examination"
as
such
guidelines as may be determined from
time to time by the academic authority
with the approval of the Government.
Subsequently, the Government order dated
09.01.2018 was issued giving guidelines
for holding the Recruitment, 2018. Clause
7 of the said guidelines specified the
essential marks which were to be obtained
by the General and Other Backward Class
candidates which were specified as 67 out
of 150 marks or 45 percent and 60 out of
150 marks i.e 40 percent for Schedule
Caste
and
Schedule
Tribe
category
candidates so as to be declared as pass and
issue of certificate in the Assistant Teacher
Recruitment Examination. A notification
was issued on 23.01.2018 giving the
schedule for applying for the Recruitment,
2018 by the eligible candidates in terms of
the guidelines dated 09.01.2018 and
17.01.2018.