# Mahendra Pratap Singh & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 4 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-18
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pratap-singh-ors-v-state-of-u-p-ors-43586
- **Pages:** 15

## Headnote

C.S.C., Ajay Kumar, D P Shukla, Samir Kalia, V P Tewari

AND
4 All. Mahendra Pratap Singh & Ors. Vs State Of U.P. & Ors.
291
As both the writ petitions relate to the same selection and involve same facts and issues they are
being decided by a common judgment. The candidates who had applied for being considered for
selection and appointment on the post of Assistant Teacher of Primary Schools in District
Faizabad in pursuance to an advertisement issued on 12.12.2014 have filed this writ petition
challenging the Government Order dated 18.12.2015 extending the last date for submission of
forms for the remaining candidates to 15.01.2016.

The State Government issued a Government Order dated 09.12.2014 determining the vacancies
on the post in question as 15,000/- and ordering initiation of a process of selection for filling up
the same. In pursuance thereof, an advertisement was issued on 12.12.2014 inviting
applications from eligible candidates possessing qualifications of two years B.T.C., two years
Urdu B.T.C. and Special B.T.C. The last date for submission of forms was 05.03.2015. The
petitioners herein along with about 34,000 candidates applied in pursuance thereof. Persons
who possessed the qualification prescribed by the NCTE in its Regulations such as D. Ed. (Special
Education), which was not mentioned in the advertisement, though it was mandatory,
approached this Court at Allahabad by means of writ petition i.e. Writ-A No. 533 of 2015 which
was decided on 02.02.2015. A direction was issued to the opposite parties to accept the online
application forms of such petitioners, however, the advertisement which was under challenged
was not quashed.

This Court had initially passed an interim order in this case on 25.01.2016 staying the extension
of last date for submission of forms vide Government Government Order dated 18.12.2015 with
liberty to opposite parties to proceed with the selection subject to result of this writ petition but
the selection did not proceed and as per the order passed in Special Appeal the opposite parties
were asked to await decision in the writ petition. While considering the interim relief matter this
Court did not consider the plea regarding determination of eligibility of candidates on different
dates in pursuance to earlier extensions in the last date for submission of forms and its impact
on the selection process and certain other aspects, which have been considered now.For the
reasons aforesaid, both the writ petitions are dismissed but without prejudice to the rights of
the petitioners to be considered for selection and appointment on the post in question as per
law.

Held: Para-

Having said so, in the end, it is necessary to provide that the Principal Secretary, Education shall
ensure that in future the selection process is initiated after a proper study of the relevant rules
and law on the subject and situation such as the one which has arisen in this case shall not be
allowed to occur

## Text

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290 INDIAN LAW REPORTS ALLAHABAD SERIES
default, in that case also such cross-objection so filed have to be heard on merits. Thus, crossobjection has effect of cross-appeal.

6. Admittedly in present matter, at the time of passing of the impugned judgment dated
20.11.2015, the lower appellate court had considered the memorandum of appeal filed by plaintiff
under Rule 1 of Order XLI CPC, but had not considered the cross-objection filed under Rule 22 of
said Order. Thus the first appellate court had manifestly erred when it had considered case of
appellant only, and failed to consider the case of respondent-defendants. This error may be due to
inadvertence but it is a serious error, which may cause serious prejudice to the legal rights of
defendants. For this reason the impugned judgment is liable to be quashed, so that civil appeal may
be decided afresh alongwith cross-objection filed in it, without being influenced by any finding of
this court on merits of the matter.

7. For the reasons discussed above, this appal is allowed. Impugned judgment dated
20.11.2015 of lower appellate court is set aside. The matter is remanded back to lower appellate
court with direction to afford afresh opportunity of hearing to parties and decide the first appeal and
cross-objection, very expeditiously, preferable within three months from receipt of copy of this
judgment.

8. Let a copy of this judgment be sent to lower appellate court immediately.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.04.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 326 Of 2016
&
Service Single No.- 7334 Of 2015

Mahendra Pratap Singh & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Laltaprasad Misra, Abhishek Misra

Counsel for the Respondents:
C.S.C., Ajay Kumar, D P Shukla, Samir Kalia, V P Tewari

AND
4 All. Mahendra Pratap Singh & Ors. Vs State Of U.P. & Ors.
291
As both the writ petitions relate to the same selection and involve same facts and issues they are
being decided by a common judgment. The candidates who had applied for being considered for
selection and appointment on the post of Assistant Teacher of Primary Schools in District
Faizabad in pursuance to an advertisement issued on 12.12.2014 have filed this writ petition
challenging the Government Order dated 18.12.2015 extending the last date for submission of
forms for the remaining candidates to 15.01.2016.

The State Government issued a Government Order dated 09.12.2014 determining the vacancies
on the post in question as 15,000/- and ordering initiation of a process of selection for filling up
the same. In pursuance thereof, an advertisement was issued on 12.12.2014 inviting
applications from eligible candidates possessing qualifications of two years B.T.C., two years
Urdu B.T.C. and Special B.T.C. The last date for submission of forms was 05.03.2015. The
petitioners herein along with about 34,000 candidates applied in pursuance thereof. Persons
who possessed the qualification prescribed by the NCTE in its Regulations such as D. Ed. (Special
Education), which was not mentioned in the advertisement, though it was mandatory,
approached this Court at Allahabad by means of writ petition i.e. Writ-A No. 533 of 2015 which
was decided on 02.02.2015. A direction was issued to the opposite parties to accept the online
application forms of such petitioners, however, the advertisement which was under challenged
was not quashed.

This Court had initially passed an interim order in this case on 25.01.2016 staying the extension
of last date for submission of forms vide Government Government Order dated 18.12.2015 with
liberty to opposite parties to proceed with the selection subject to result of this writ petition but
the selection did not proceed and as per the order passed in Special Appeal the opposite parties
were asked to await decision in the writ petition. While considering the interim relief matter this
Court did not consider the plea regarding determination of eligibility of candidates on different
dates in pursuance to earlier extensions in the last date for submission of forms and its impact
on the selection process and certain other aspects, which have been considered now.For the
reasons aforesaid, both the writ petitions are dismissed but without prejudice to the rights of
the petitioners to be considered for selection and appointment on the post in question as per
law.

Held: Para-

Having said so, in the end, it is necessary to provide that the Principal Secretary, Education shall
ensure that in future the selection process is initiated after a proper study of the relevant rules
and law on the subject and situation such as the one which has arisen in this case shall not be
allowed to occur and if it does, then, personal liability of the concerned officials shall be fixed in
the matter so as to preserve the sanctity and certainty attached to such recruitment process.
After the present selection process is over and appointments have been made he shall look into
the entire exercise and ascertain the faults on the part of the authorities so as to issue relevant
guidelines and if necessary to make necessary amendments in the relevant rules to incorporate a
fair and reasonable procedure therein to ensure a proper and fair selection. It shall be ensured
that in future selections the date on which the eligibility is to be determined is specifically fixed
and not left to unforeseen circumstances such as have arisen in this case.

Case Law discussed : 1993 (2) SCC 429; Dr. M. V. Nair, Vs. Union of India and Others, 1994 (2) SCC
723; U.P. Public Service Commission, U.P. Vs. Alpana, 2000 (5) SCC 262; Bhupender Pal Singh and others
Vs.State of Punjab & others, 2013 (4) SCC 540; Tej Prakash Pathak and Others Vs. Rajasthan High Court and
others, 2009 (14) SCC 517;Tamil Nadu Computer Science Vs. Higher Secondary School Computer Teachers
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Association, 1994 (6) SCC 349; Gauri Shanker & others Vs. Union of India and others, 1969 (1) SCC 817;
U.P.Electric Power Vs. State of U.P.; AIR 1955 SC 191; Buddhan Chaudhari Vs. State of Bihar, AIR 1958 SC
538; Ram Krishna Dalmia Vs. Justric S.R. Tendulkar, 2009(12) SCC 231; Haryana State Electricity Board Vs.
Gulshan, 2012 (3) SCC 522; State of Gujarat and others Vs. S.R. Oil Ltd. And another, 2003 (8) SCC
648;Sought Eastern Coal Field Ltd. Vs. State of M.P. and others, AIR1953 SC 136; Lal Bhagwant Singh Vs.
Kishan Das, 1988 (2) SCC 602; A. R. Antulay Vs. R. S. Nalayak, 2007 (10) SCC 385; Noida Entrepreneurs
Association Vs. Noida and others, 2007 (2) SCC 130; Teri Oat Estate Vs. Union Territory Chandigarh, 1994 (6)
SCC 651; Tata Cellular Vs. Union of India, 2008 (7) SCC 11; Minami Malhotra Vs. High Court of Delhi, 2008 (3)
SCC 512; K. Manju Shree Vs. State of Andhra Pradesh and others, 2013 (12) SCC 171;Manoj Manu and
another Vs. Union of India, 1994 (Supp 1) SCC 250; Dr. H. Mukherjee Vs. Union of India, 2010 (7) SCC 678;
East Coast Railway and another Vs. Mahadev Appa Rao, 2010 (11) SCC 674; Union of India Vs. Pritilata Nanda
and 2011(14)SCC 739; Chairman, B.S.N.L. Vs. Mishri Lal and others. Bhupender Pal Singh and others Vs.
State of Punjab & others Reported in 2000 (5) SCC 262.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard learned counsel for the parties.

2. As both the writ petitions relate to the same selection and involve same facts and issues
they are being decided by a common judgment. The facts of Writ Petition No. 326(SS) of 2016
have been considered for the sake of convenience.

3. The candidates who had applied for being considered for selection and appointment on
the post of Assistant Teacher of Primary Schools in District Faizabad in pursuance to an
advertisement issued on 12.12.2014 have filed this writ petition challenging the Government Order
dated 18.12.2015 extending the last date for submission of forms for the remaining candidates to
15.01.2016.

4. The facts of the case in brief are as under:-

5. The State Government issued a Government Order dated 09.12.2014 determining the
vacancies on the post in question as 15,000/- and ordering initiation of a process of selection for
filling up the same. In pursuance thereof, an advertisement was issued on 12.12.2014 inviting
applications from eligible candidates possessing qualifications of two years B.T.C., two years Urdu
B.T.C. and Special B.T.C. The last date for submission of forms was 05.03.2015. The petitioners
herein along with about 34,000 candidates applied in pursuance thereof. Persons who possessed the
qualification prescribed by the NCTE in its Regulations such as D. Ed. (Special Education), which
was not mentioned in the advertisement, though it was mandatory, approached this Court at
Allahabad by means of writ petition i.e. Writ-A No. 533 of 2015 which was decided on 02.02.2015.
A direction was issued to the opposite parties to accept the online application forms of such
petitioners, however, the advertisement which was under challenged was not quashed.

6. Some other persons filed Writ-A No. 7406 of 2015 challenging the notification and
advertisement mentioned herein above on the ground that cut off date for determining age limit was
wrongly mentioned as 01.07.2014 whereas in terms of Rule 6 of the Uttar Pradesh Basic Education
4 All. Mahendra Pratap Singh & Ors. Vs State Of U.P. & Ors.
293
(Teachers) Service Rules, 1981 (For short 'Rules, 1981') it should have been 01.07.2015. The said
writ petition was decided on 25.02.2015 with a direction that the permissible age limit should be as
on 01.07.2015 and all those who fall within the said cut off date should be allowed to submit their
candidature.

7. Another writ petition bearing Writ-A No. 1205 of 2015 was filed by those who
possessed the qualification of Bachelor Degree in Elementary Education (B. El. Ed.) challenging
the same advertisement on the ground that this qualification had not been mentioned though it was
mandatory as per the NCTE Regulations of 2011. The Court did not quash the advertisement but
directed that a corrigendum be issued at the earliest preferably within a period of 15 days
permitting the petitioners and those similarly situated to offer their candidature against the
advertisement in question. This decision was rendered on 23.02.2015.

8. All the aforesaid judgments were passed prior to 05.03.2015 i.e. the last date for
submission of forms but the relevant orders for compliance thereof were issued subsequently on
09.04.2015 extending the date for submission of such forms for candidates possessing D. Ed.
(Special Education) from 16.04.2015 to 30.04.2015 and an advertisement was issued for this
purpose on 15.04.2015. Another Government Order was issued on 02.06.2015 modifying the cut
off date for fixation of age limit as 01.07.2015 and an advertisement was also issued in this regard
inviting applications from eligible candidates and the date of submission of forms for them was
fixed as 02.09.2015 to 11.09.2015. By a notification dated 31.08.2015 the same extension in date
for submission of forms was granted to those who possesses the qualification of Special B.T.C. in
the year 2004, 2007 and 2008. The judgment passed in Writ-A No. 1205 of 2015 was put to
challenge in Special Appeal and thereafter before the Supreme Court by means of Special Leave
Petition which was dismissed on 01.07.2015. Ultimately, on 04.12.2015 a notification was issued
allowing such candidates to apply and extending the date for submission of forms by them from
14.12.2015 to 28.12.2015. The Government Orders were issued after initiation of contempt
proceeding.

9. It so happened that when the date was extended for D. Ed. (Special Education)
candidates to 16.04.2015 to 30.04.2015, certain others who did not fall in the said category also
applied, taking advantage of absence of any preventive mechanism in the Software/ Website of the
opposite parties, and their names also got included in the mother list prepared by NIC. However,
when this error was detected and they were excluded from the list vide Circular dated 10.10.2015,
being aggrieved, some of these persons, namely, Anil Kumar Maurya and others filed writ petition
before this Court at Allahabad bearing Writ-A No. 59443 of 2015 wherein an interim order was
passed allowing the petitioners therein and those similarly situated to appear in the selection
provisionally and if found fit to appoint them provisionally subject to result of the writ petition. The
Special Appeal filed against the said interim order was dismissed by a Division Bench of this
Court.

9(A). In the meantime, a writ petition bearing Writ-A No. 29047 of 2015 was filed by a
person similarly situated to the petitioners herein alleging that certain other persons who had not
294 INDIAN LAW REPORTS ALLAHABAD SERIES
applied by 05.03.2015 had been allowed to participate in the selection in pursuance to the
advertisement dated 12.12.2014 though the said benefit had to be confined to those in whose case
orders had been passed by the Court and who possessed the qualification of D. Ed. (Special
Education) and not to all and sandary, but, in the garb of extension of date several B.T.C.
Candidates whose results were declared up to 29.04.2015 i.e. after 05.03.2015 had been allowed to
participate and therefore, the field of consideration had been enlarged to an extent prejudicial to the
interest of the petitioners. The said writ petition was dismissed on 19.05.2015 with the observation
"mere inclusion of other candidates for selection would not in any manner be a cause of injury to
the petitioners. The petitioner has to participate in the selection according to its own merit and,
therefore inclusion of other candidates can not be resisted by the petitioners."

10. The counselling for the aforesaid post was held all over the State of U.P. on 26.10.2015
and 06.11.2015 in pursuance to the Circular of the Board dated 10.10.2015. In the first counselling
only those who had undergone the training in the district concerned were allowed to appear while
in the second counselling outsiders were also allowed. The counselling for the candidates
possessing the qualification of B. El. Ed. has not been held as yet.

11. In District of Faizabad where the petitioners had appeared, a select list of 167 persons
against 200 seats was prepared and was duly signed by the four members of the Selection
Committee referred in the Rules of 1981. For the remaining 37 seats, counselling was held on
06.11.2015 and based on the aforesaid exercise a composite list of 200 selected candidates was
prepared, including the 167 referred herein above, but, the said composite list, which is on record
including the original record, does not bear the signature of the members of the Selection
Committee but there is no doubt that the list was prepared and obviously it was prepared by the
Selection Committee as none else could have prepared it.

12. In District of Sultanpur, based on such exercise, appointment orders were issued
thought according to the opposite parties erroneously were subsequently cancelled within a
reasonable time, but, on writ petitions being filed the said cancellation orders were stayed. The said
writ petitions are still pending before this Court at Allahabad and Lucknow.

13. At this stage the State Government realized that consequent to the extension of last for
submission of forms frequently and several times a situation had arisen where different dates of
eligibility had come into existence for different categories, as, in the absence of any such specific
date having been stipulated in the Rules, the Government Order dated 09.12.2014 or the
advertisement it was the last date for submission of forms which had to be treated as the date for
determining eligibility. Thus, initially the date of determining eligibility (other than age eligibility)
was 05.03.2015 but for the D. Ed. (Special Education) candidates it was extended to 16.04.201530.04.2015, for Special B.T.C. of the year 2007, 2007 and 2008 it was extended to 02.09.2015 to
11.09.2015 and for B. El. Ed. it was extended to 14.12.2015 to 28.12.2015, the cut of date for age
limit was extended from 01.07.2014 to 01.07.2015. Therefore, the State Government in its wisdom
opined that there has to be uniformity in the date of determination of eligibility otherwise there
would be allegation of discrimination and arbitrariness in the selection as others who were eligible
4 All. Mahendra Pratap Singh & Ors. Vs State Of U.P. & Ors.
295
but did not apply by 05.03.2015 or those who acquired the eligibility after 05.03.2015 and were
covered by the judgment and order of the Courts but could not apply or not having approached the
Courts could not apply could feel aggrieved, therefore, in these circumstances, specially, as, in Anil
Kumar Maurya case those who had acquired the qualifications after 05.03.2015 had been allowed
to participate provisionally and even be appointed provisionally, therefore, the State Government
felt that it would be unfair to deprive others who were similarly situated from participating,
consequently, it issued the Government Order dated 18.12.2015 extending the last date for
submission of forms for all to 15.01.2016 fixing the time schedule for their counselling as also
subsequent issuance of appointment orders of all selected candidates through out the State of U.P.

14. It is this government order and the consequential advertisement which is under
challenge.

15. It is not out of place to mention that it is not very clear as to what was the stage of
selection in the districts other than those referred herein above when the impugned decision was
taken, but, during the course of argument in response to a query of the Court, Mohd. Mansoor,
learned Chief Standing Counsel made an oral statement at the bar that selections were at a similar
stage in other districts as in District- Faizabad, as, the counselling had taken place all over the State
of U.P. on the same dates.

16. The challenge by the petitioners to the impugned decision is on the ground that in
District- Faizabad as against 200 seats counselling and selection had already taken place. A list of
167 candidates duly signed by the members of the Selection Committee had also been prepared and
even for the remaining 37 seats the counselling took place and based thereon a composite select list
was prepared and as far as the absence of signatures of selection committee members on the said
composite list is concerned, it was submitted that there appears to be some manipulation to defeat
the rights of the petitioners herein, but in any case, the selection was almost completed in all
respect and the contention of the opposite parties that the said lists were eligibility lists or tentative
selection list is absolutely misconceived as they had been prepared after counselling and there was
no concept of a tentative list in the rules.

17. The contention was that extension of the last date for submission of forms at this stage
of the selection process was patently unreasonable and arbitrarily. The judgments of the Courts had
been rendered prior to the last date for submission of forms i.e. 05.03.2015, but, the opposite
parties delayed compliance thereof and issued the consequential orders belatedly, moreover, while
extending the last date of submission of forms the date of eligibility did not get extended
automatically, as, in all the Government Orders and advertisements issued subsequently there was a
clear stipulation that all other conditions would be the same as mentioned in the Government Order
dated 09.12.2014. Even otherwise the date of eligibility would not got extended automatically, as,
this was not the intention of the Courts in any of the judgment and order passed by it.

18. It was submitted that the opposite parties have unnecessarily created confusion and
complicated the process to the detriment of the petitioners. The private opposite parties are not
296 INDIAN LAW REPORTS ALLAHABAD SERIES
similarly situated to those for whom the date had been extended earlier, therefore, the impugned
extension is not reasonable, firstly for the reason they do not possess the qualification those
candidates possessed; secondly as far as parity with Anil Kumar Maurya and others is concerned,
these persons had approached the Court and their rights are still subjudice in the writ petition filed
by them which is pending. According to the State itself, these persons had illegally submitted their
online application forms, therefore, there was no question of extending the benefits granted to them
to others as it would amount to perpetuating the illegality already committed and also granting of
parity in illegality. The alleged absence of uniformity as regards the date of eligibility is a
misconception and the attempt to bring about uniformity is without any rational basis. The
judgment rendered on 19.05.2015 was rendered at a time when the counselling and selection had
not taken place, moreover, the Court did not consider the relevant aspects of law and the provisions
of the rules, therefore, it is no judgment in the eyes of law.

19. It was further submitted that the earlier extension of dates was only on account of the
wrongs committed by the opposite parties, who could not take advantage of the same nor make the
petitioners herein suffer on this count. None of the private opposite parties possessed the requisite
qualification as on 05.03.2015, therefore, they could not have applied in terms of the initial
advertisement and the impugned decision gives undue benefit to them to the detriment of the
petitioners and those who had applied within time.

20. The private opposite parties are not even similarly placed to Anil Kumar Maurya and
others as their names did not find place in the mother list and they had not applied, even illegally,
as had been done by Shri Maurya and others. He also submitted that subsequent orders/
advertisement were in continuation of the initial advertisement dated 12.12.2014 and Government
Order dated 09.12.2014, therefore, mere extension of date for submission of forms would not ipsofacto imply extension of date for determination of eligibility. He contended that even a participant
in selection specially one whose name figured in the list, could not be ousted or treated unfairly in
the selection process even as per the dictum of the Constitution Bench in Shankarsan Dass Vs.
Union of India reported in AIR 1991, 1612 which had been relied upon the opposite parties. The
rules of the game can not be changed in midst of the game.

21. He also invited the attention of the Court to the Rule known as U.P. Basic Education
(Teachers) (Posting) Rules, 2008 (For short 'Rules, 2008) to contend that not only the selection had
taken place, but, as is evident from certain lists which are on record the required exercise had also
been done under the aforesaid rules for appointment and posting, therefore, extension of the last
date for submission of application forms at this stage was clearly unreasonable and arbitrarily. He
also submitted that there were no B. El. Ed. candidates in District- Faizabad, therefore, the fact that
their counselling had not yet taken place and on its being held the merit would be reshuffled
accordingly, is of no consequence in District- Faizabad. The petitioners would be gravely
prejudiced by the impugned decision as their candidature has already been considered and they
have been included in the select list and there was nothing left to be done in the selection except
issuance of appointment letters. Equality could only be brought about amongst likes and not unlike.
4 All. Mahendra Pratap Singh & Ors. Vs State Of U.P. & Ors.
297
22. Learned counsel for the petitioner relied upon judgments reported in 1993 (2) SCC
429; Dr. M. V. Nair, Vs. Union of India and others, 1994 (2) SCC 723; U.P. Public Service
Commission, U.P. Vs. Alpana, 2000 (5) SCC 262; Bhupender Pal Singh and others Vs. State of
Punjab & others, 2013 (4) SCC 540; Tej Prakash Pathak and others Vs. Rajasthan High Court
and others, 2009 (14) SCC 517; Tamil Nadu Computer Science Vs. Higher Secondary School
Computer Teachers Association, 1994 (6) SCC 349; Gauri Shanker & others Vs. Union of India
and others, 1969 (1) SCC 817; U.P. Electric Power Vs. State of U.P.; AIR 1955 SC 191;
Buddhan Chaudhari Vs. State of Bihar, AIR 1958 SC 538; Ram Krishna Dalmia Vs. Justric S.R.
Tendulkar, 2009(12) SCC 231; Haryana State Electricity Board Vs. Gulshan, 2012 (3) SCC 522;
State of Gujarat and others Vs. S.R. Oil Ltd. and another, 2003 (8) SCC 648; Sought Eastern
Coal Field Ltd. Vs. State of M.P. and others, AIR 1953 SC 136; Lal Bhagwant Singh Vs. Kishan
Das, 1988 (2) SCC 602; A. R. Antulay Vs. R. S. Nalayak, 2007 (10) SCC 385; Noida
Entrepreneurs Association Vs. Noida and others, 2007 (2) SCC 130; Teri Oat Estate Vs. Union
Territory Chandigarh, 1994 (6) SCC 651; Tata Cellular Vs. Union of India, 2008 (7) SCC 11;
Minami Malhotra Vs. High Court of Delhi, 2008 (3) SCC 512; K. Manju Shree Vs. State of
Andhra Pradesh and others, 2013 (12) SCC 171; Manoj Manu and another Vs. Union of India,
1994 (Supp 1) SCC 250; Dr. H. Mukherjee Vs. Union of India, 2010 (7) SCC 678; East Coast
Railway and another Vs. Mahadev Appa Rao, 2010 (11) SCC 674; Union of India Vs. Pritilata
Nanda and 2011(14)SCC 739; Chairman, B.S.N.L. Vs. Mishri Lal and others.

23. Mohd. Mansoor, learned Chief Standing Counsel appearing for the State and its
authority on the other hand submitted that on account of the frequent extension of dates for
submission of forms, the date of eligibility also got automatically extended, consequently, a
situation arose where there was no uniformity in the said date. Considering the facts which
appeared before the State Government it was clearly a case resulting in discrimination to the
candidates who could not apply earlier. The petitioners herein had no locus standi to maintain this
writ petition in view of the law laid down in Shankarsan Dass (supra) that a selected candidate
does not have any right of appointment. None of their rights much less fundamental rights have
been violated. They are still participants in the selection, mere enlargement of the zone of
consideration can not be a ground for interference in the matter. The impugned decision is a policy
decision taken by the Government on the basis of material available and the opinion formed is not
such which could be said to be perverse or irrational, therefore, there is no scope for interference
with such a bonafide decision which is in the interest of selection process being completed and
sustained. The Rules of 2008 relied upon by the petitioner have no application at this stage of
selection and the contentions based thereon are misconceived.

24. Learned counsel for the Basic Education Officer and Board adopted the same stand as
the State Counsel and supported the impugned decision. He contended that the selection process
was still underway. The alleged select list was in fact an eligibility list referable to Rule 14 (2) (3)
of the Rules, 1981. It is referred as a tentative select list, therefore, it has not attained finality even
at the level of the Selection Committee. It has not been approved by the Selection Committee.
Therefore, the State Government can very well extend the last date for submission of forms to
avoid arbitrariness, discrimination and to bring about uniformity and equality amongst all. He
298 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to the Circular Dated 10.10.2015 to show that the requirement of preparing a first tentative
select list based on first counselling followed by a second select list based on the second
counselling was prescribed in the Circular of the Board dated 10.10.2015 and the process of
selection had been undertaken accordingly, which was in no way violative of the scheme and spirit
of Rules and provisions contained therein. The petitioners do not have an indefeasible right to
appointment nor any enforceable right to maintain this Writ Petition.

25. The learned Senior Counsel appearing for the private opposite parties contended that
the impugned decision was a bonafide decision taken by the State Government based on the
material available before it considering the peculiar facts of the case wherein the date for
submission of forms had to be extended time and again, for whatever reason, and others who were
similarly situated and who had also acquired the qualification after 05.03.2015 including Anil
Kumar Maurya and others had been allowed to participate in the selection and the State
Government itself had allowed others who had acquired such eligibility after 05.03.2015 to
participate vide notification dated 31.08.2015, which was never challenged by the petitioners, WritA No. 29407 of 2015 filed by a person similarly situated to the petitioners herein said action was
dismissed on 19.05.2015, therefore, if the State Government had taken a bonafide decision for
justifiable reasons mentioned therein to avoid discrimination and bring about equal opportunity to
all, such decision is not liable to be interfered in the exercise of extraordinary discretionary
jurisdiction in the absence of any allegation of mala fide by the petitioners and in the absence of
any such mala fide from the records, as, such action is in conformity with the letter and spirit of
Article 14 and 16 of the Constitution of India. No prejudice is being caused to the petitioners, they
have not been ousted from consideration rather they have already been considered. The impugned
decision only allows others to be considered along with them and nothing more.

26. The selection contemplated in the rules, does not involve any written examination or
interview. This selection is based on marks already obtained by them in the earlier examinations.
The select list has to be prepared as per the Rules of 1981 and the appendix annexed therewith. No
large exercise was required to be undertaken as a consequence of the impugned decision. The
counselling for the B. El. Ed. Has not yet taken place and as it was bound to take place under the
orders of the Court, it would require a reshuffling of the merit list prepared in the districts, if any.
The fact that this may not be necessary in District- Faizabad, is not relevant, as, the Court is
considering a policy decision which has an impact all over the State of U.P. and not merely in
District- Faizabad, therefore, the Court while taking a decision in the matter should keep in mind
the principles and rationale involved and not peculiar facts here and there, therefore, on principle
the decision is absolutely justified. Causing of mere inconvenience to the petitioners without
violation of any right, can not be a ground for interference. It is not a case of whimsical exercise of
power. A considered and reasoned decision has been taken by the State for which there was
sufficient material before it.

27. Shri Ramesh Pandey, Advocate appearing for the interveners advanced his argument on
the same lines as the other opposite parties, therefore, the same need not be narrated in detail.
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28. As far as the contention of the opposite parties that the petitioners do not have any
enforceable right to seek appointment and being mere participants in the selection they can not
maintain this writ petition for the relief claimed is concerned the same can not be accepted. The
relief no. 2 seeking appointment is merely consequential to relief no. 1. Though a selected
candidate or a mere participant in selection, does not have an indefeasible right to appointment,
they are entitled to maintain a petition challenging an action relating to such selection on grounds
of it being arbitrary unreasonable or amounting to changing the Rules of the game in its midst etc.
The petitioners have come to Court alleging arbitrariness in selection process by extension of the
last date for submission of form at such a stage when the selection is either over or almost
concluded which according to them is apparently unreasonable. The opposite parties are under
obligation to hold the selection process in a reasonable, fair and transparent manner, therefore,
considering the allegations, it can not be said that this writ petition filed by the petitioner is not
maintainable or they do not have any enforceable right. Even in matters where selections are
cancelled, such action of cancellation can be challenged on the ground that it is arbitrary and
whimsical or capricious, therefore, this objection is rejected. Whether any interference is to be
made on merits or to what extent, is a separate issue which is to be considered hereinafter. If relief
no. 1 is not granted then relief no. 2 can not be considered at this stage as further selection etc. Will
have to take place.

29. Article 21-A of the Constitution confers a fundamental right of free and compulsory
education to all children of the age of 6 to 14 years in such manner as State may by law determine.
The Central Legislature has promulgated the Right to Education Act, 2010. Such right can not be
realized unless adequate number of duly selected and qualified teachers are made available in
Primary Schools. The State is under an obligation to provide such teachers and to undertake a
process of their selection and appointment in fair, transparent and reasonable manner in accordance
with rules, expeditiously.

30. In the present case the vacancies were determined on 09.12.2014, more than one year
has lapsed but recruitment process has not been taken to its logical end by issuance of appointment
letters. The advertisement was issued on 12.12.2014 fixing the last date for submission of forms as
05.03.2015 but the opposite parties committed an apparent error in not including the mandatory
qualifications prescribed by the NCTE for such selection thereby excluding such candidates from
the zone of consideration, depriving them of their right of equal opportunity in public employment
as per the relevant rules. Consequently this constitutional Court intervened and passed necessary
orders which have already been referred herein above. The opposite parties did not even bother to
look into the relevant rules in this regard specially Rule 6 under which the cut off date for
determining the age limit was to be the 1st date of the recruitment year following the year in which
the advertisement was made, instead, they fixed the cut off date as 01.07.2014, whereas, it should
have be as 01.07.2015 thereby compelling this Court once again to interfere in the matter. The
other omission by the State was in the matter of fixing a specific date for determination of
eligibility as opined by the Supreme Court in the case of Bhupender Pal Singh and others Vs.
State of Punjab & others reported in 2000 (5) SCC 262 (paragraph 13 and 14) which has led to
the confusion and alleged absence of uniformity in this regard ultimately leading to the impugned
300 INDIAN LAW REPORTS ALLAHABAD SERIES
decision. The negligent and casual manner in which the selection process has been undertaken by
the authorities hardly needs to be emphasized and is evident from the facts narrated herein above.
When the Courts passed the judgments prior to 05.03.2015 it was not the intention that date for
determining the eligibility of the candidates be also extended, in any case all the judgments were
rendered prior to 05.03.2015 but the compliance was made belatedly, may be, because of further
litigation in some of the matters. Much of the uncertainty and differential treatment resulting there
from would have been avoided by the State Authorities by specifically providing that the date for
determining the eligibility conditions would continue to be 05.03.2015 irrespective of the extension
in the date for submission of forms, as, this was permissible and in fact the factual situation
enjoined upon the State to do so and there is nothing in law which prohibited it from doing so.

31. From the conspectus of judgments cited before the Court which are 1993 (2) SCC 429;
Dr. M. V. Nair, Vs. Union of India and others, 1994 (2) SCC 723; U.P. Public Service
Commission, U.P. Vs. Alpana, 2000 (5) SCC 262; Bhupender Pal Singh and others Vs. State of
Punjab & others, 2013 (4) SCC 540; Tej Prakash Pathak and others Vs. Rajasthan High Court
and others and 2009 (14) SCC 517; Tamil Nadu Computer Science Vs. Higher Secondary
School Computer Teachers Association the law on the subject is that if the date for determining
the eligibility is not prescribed in the rules or in the advertisement then it shall be the last date for
submission of form. In Bhupender Pal Singh's case (supra) the Supreme Court enjoined upon the
authorities to clearly lay down a specific cut off date by reference to which the applicants were
required to satisfy their eligibility. By fixing the last date for submission of form as 05.03.2015
obviously the intention of the State was that the eligibility would be determined on the said date,
therefore, while extending the same subsequently in the compelling circumstances with which it
was faced, though it was of its own making consequent to its own wrongs, the least that the State
Government could have done was so to specify the aforesaid as 05.03.2015 as this would have
brought about uniformity/ equality amongst the candidates which is now being pressed by the State
and would have avoided unnecessary litigation as also delay in the selection process but obviously
the State Authorities did not at apply their mind to this aspect of the matter and woke up only in
December, 2015 when in many districts the counselling had already been held in October/
November, 2015 and in at least two districts, if not more, a select list had also been prepared which
is being termed as tentative select list though in the Rules there is no such requirement and the
same has been brought into existence by a Circular of the Board dated 10.10.2015 may be to
facilitate the holding of selection through out the State considering the huge exercise involved.
Contention of the opposite parties that these lists were in fact eligibility lists referable to the Rule
14 (2) or (3) is absolutely misconceived as such an eligibility list would not be prepared after
counselling and it would not have been referred as a select list and would not have been prepared
by the Members of the Selection Committee.

32. On a bare perusal thereof, it is apparent that these are select lists prepared in terms of
the Rules based on the parameters prescribed therein. The attempt to pass then off as eligibility lists
is nothing but a desperate attempt on the part of the opposite parties to justify their action impugned
herein. However, without dwelling on this issue any further, as, irrespective of the rival contentions
on this issue, the fact of the matter is that selection had reached a stage where it was before the
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301
Selection Committee and at this stage the State Government decided to extend the last date for
submission of forms to 15.01.2016 for the reasons already mentioned herein above. It is also trite
that at such a stage the concerned authorities could have cancelled the selection itself though they
did not do so.