# Mohit Kumar Dwivedi v. Ram Janak Maurya & Ors

- **Citation:** (2023) 11 ILRA 481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-31
- **Case number:** Special Appeal No. 613 of 2018
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-kumar-dwivedi-v-ram-janak-maurya-ors-49364
- **Pages:** 28

## Headnote

C.S.C., Amrendra Nath Tripathi, Durga
Prasad
Shukla,
Gaurav
Mehrotra,
Himanshu Raghave, Ishita Yadu, Nand
Kishore
Patel,
Onkar
Singh,
Pradeep
Kumar Yadav, Sachin Kumar Srivastava,
Sharad Nandan Ojha,
Sudeep Kumar,
Sudhir
Mishra,
Ujjwal
Tripathi,
Utsav
Mishra,
Vindhyawashin
Kumar,
Vivek
Mishra
Service
Law-U.P.
Basic
Education
(Teachers) Service Rules, 1981-Rule 14
---Special Appeals filed against the judgment
whereby the learned Single Judge has set aside
the entire selection on the post of Assistant
Teachers against 12,460 vacancies initiated in
pursuance of the advertisement issued on
21.12.2016
with
certain
directions---
Advertisement issued for appointment of 12,460
Assistant Teachers in the Junior Schools. 5,990
candidates are already working on the said
posts, 6,470 posts are still left to be filled---
Merit should always be promoted for ensuring
quality education as proposed by the RTE Act in
its preamble itself and the Courts have always
promoted this cause, denial of appointments to
meritorious candidates is prejudicial to the
interest of meritorious candidates, who are
future of our Nation---Thus, this court does not
find any error in the preparation of merit list at
District Level of the Assistant Teachers on the
basis of candidates of "0" vacancy district to
participate in the counseling's for any district by
marking their preference, which needless to
say is in conformity to section 23 of the RTE
Act. The said provisions is also not in breach
of the touchstone as devised by the Apex
Court for infringement of the provision of
Articles
14,
15,
16
and
21-A of
the
Constitution of India---Impugned order set
aside---Directions issued to the authorities
concerned to take a decision to fill-up all the
posts inclusive of residual 6,470 by preparing
a common merit list of all the eligible
Assistant Teachers as per NCTE Notifications
read
with
Notification/Circular
dated
26.12.2016 in the respective districts, within a
period of three months from the date of
production of a certified copy of this order.(E15)

List of the cases referred-:

## Text

_Characters 0–39,760 of 91,456. This is a partial read: ask again with offset=39760 for what follows._

11 All. Mohit Kumar Dwivedi Vs. Ram Janak Maurya & Ors.
481

"Whether the interpretation given to
Clause 8 of the Scheme dated 10.5.2019 in
Chairman, Baroda U.P. Bank (Erstwhile
Baroda U.P. Gramin Bank), Gorakhpur
and Others vs. Jitendra and Others and
analogous Schemes, is sustainable in law,
in view of judgment of Supreme Court in
Secretary to Government Department of
Education (Primary) and Others vs.
Bheemesh alias Bheemappa and other
judgments?"

17. Let the papers of the instant batch
of appeals be placed before Hon'ble the
Chief Justice for constituting a Larger
Bench.
----------
(2023) 11 ILRA 481
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.10.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 613 of 2018
along with
other connected cases

Mohit Kumar Dwivedi ...Appellant
Versus
Ram Janak Maurya & Ors. ...Respondents

Counsel for the Appellant:
Apporva Tewari, Anand Kumar Yadav, Paritosh
Shukla, Sudeep Kumar, Sukh Deo Singh

Counsel for the Respondents:
C.S.C., Amrendra Nath Tripathi, Durga
Prasad
Shukla,
Gaurav
Mehrotra,
Himanshu Raghave, Ishita Yadu, Nand
Kishore
Patel,
Onkar
Singh,
Pradeep
Kumar Yadav, Sachin Kumar Srivastava,
Sharad Nandan Ojha,
Sudeep Kumar,
Sudhir
Mishra,
Ujjwal
Tripathi,
Utsav
Mishra,
Vindhyawashin
Kumar,
Vivek
Mishra
Service
Law-U.P.
Basic
Education
(Teachers) Service Rules, 1981-Rule 14
---Special Appeals filed against the judgment
whereby the learned Single Judge has set aside
the entire selection on the post of Assistant
Teachers against 12,460 vacancies initiated in
pursuance of the advertisement issued on
21.12.2016
with
certain
directions---
Advertisement issued for appointment of 12,460
Assistant Teachers in the Junior Schools. 5,990
candidates are already working on the said
posts, 6,470 posts are still left to be filled---
Merit should always be promoted for ensuring
quality education as proposed by the RTE Act in
its preamble itself and the Courts have always
promoted this cause, denial of appointments to
meritorious candidates is prejudicial to the
interest of meritorious candidates, who are
future of our Nation---Thus, this court does not
find any error in the preparation of merit list at
District Level of the Assistant Teachers on the
basis of candidates of "0" vacancy district to
participate in the counseling's for any district by
marking their preference, which needless to
say is in conformity to section 23 of the RTE
Act. The said provisions is also not in breach
of the touchstone as devised by the Apex
Court for infringement of the provision of
Articles
14,
15,
16
and
21-A of
the
Constitution of India---Impugned order set
aside---Directions issued to the authorities
concerned to take a decision to fill-up all the
posts inclusive of residual 6,470 by preparing
a common merit list of all the eligible
Assistant Teachers as per NCTE Notifications
read
with
Notification/Circular
dated
26.12.2016 in the respective districts, within a
period of three months from the date of
production of a certified copy of this order.(E15)

List of the cases referred-:

1. Girjesh Srivastava Vs St. of M.P. [(2010) SCC
(10) 707]

2.
D.
N.
Jeevaraj
Vs
Chief
Secretary,
Government of Karnataka & ors.[(2016) 2 SCC
653]

3. St. of Har. & anr. Vs Chanan Mal &
ors.[(1977) 1 SCC 340]
482 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Dhananjay Malik Vs St. of Uttaranchal &
ors.[(2008) 4 SCC 171]

5. Rajan Kumar Vs St. of Bihar [(2014) 16 SCC
187].

6. Special Appeal Defective No.130 of 2014,
Harsh Kumar & ors.Vs St. of U.P. & ors.;

7. Writ PetitionNo. 47490 of 2017, Km. Pallavi
Vs St. of U.P. & ors.

8. St. of U.P. Vs Shiv Kumar Pathak [(2018) 12
SCC 595]

9. St. of U.P. Vs Shiv Kumar Pathak [(2018) 12 SCC
595]

10. Dhanraj Vs Vikram Singh & ors.[2023 SCC OnLine
SC 724

11. Ch. Tia Ramji & ors.Vs St. of U.P. & ors.[1956 SCC
OnLine SC 9]

12. M. Karunanidhi Vs U.O.I. & anr. [(1979) 3 SCC
431]

13. Ashish Kumar Vs St. of U.P. & ors.[(2018) 3 SCC
55]

14. Malik Mazhar Sultan & anr. Vs U.P. Public Service
Commission & ors.[(2006) 9 SCC 507],

15. Dr. (Major) Meeta Sahai Vs St. of Bihar &
ors.[(2019) 20 SCC 17],

16. Raj Kumar & ors.Vs Shakti Raj & ors.[(1997) 9 SCC
527]

17. Dharmendra Kumar & ors.Vs Abhishek Kumar &
ors.[(2017) SCC OnLine All 2716].

18. Ambika Prasad Mishra Vs St. of U.P. & ors.[(1980)
3 SCC 719].

19. Misc Bench No. 5320 of 2017 (Ambrish Kumar &
20 Ors. V/s St. of U.P Thru Prin. Secy. Basic Education
& Ors.),

20. Shiv Kumar Sharma Vs St. of U.P. & ors.(2013 (6)
ADJ 310 (FB)

21. Ranjan Kumar V/s St. of Bihar, (2014) 16 SCC 187.
22. St. of U.P. Vs Shiv Kumar Pathak [(2018) 12 SCC
595,

23. Society forunaided Private Schools ofRajasthan Vs
U.O.I. & anr. ( 2012) 6 SCC 1)

(Delivered by Hon'ble Attau Rahman
Masoodi, J. & Hon'ble Om Prakash
Shukla, J.)

PRELUDE

(1) Heard extensively at length Sri
Anil Tewari, learned Senior Advocate
assisted by Sri Apoorva Tiwari, learned
Counsel for the appellant in Special Appeal
No. 613 of 2018, Dr. L. P. Mishra assisted
by Sri Onkar Singh and Sri Man Bahadur
Singh, learned Counsel for the appellants in
Special Appeals Nos.609 of 2018 and 617
of 2018, Sri Himanshu Raghave, learned
counsel for the appellants in Special Appeal
No. 634 of 2018, 670 of 2018, 193 of 2020
as also in Special Appeal Defective Nos.
276 of 2021, 13 of 2022, 267 of 2022 387
of 2023 and 413 of 2023, Sri Vinay
Prakash Tiwari, learned Counsel for the
appellants in Special appeal No. 92 of
2020, Sri Dilip Mishra, learned counsel
for the appellants in Special Appeal
Defective No. 207 of 2020, Ms. Shreya
Chaudhary, learned counsel for the
appellants in Special Appeal Defective No.
65 of 2023, Sri Priyam Mishra, learned
counsel for the appellants in Special Appeal
Defective No. 68 of 2023, Sri Upendra
Nath Mishra, learned Senior Advocate
assisted by Sri Neel Kamal Mishra, learned
counsel for the appellants in Special Appeal
Defective No. 377 of 2023 and 379 of
2023, Sri Sushil Pandey, learned counsel
appearing for the appellants in Special
Appeal Defective No. 399 of 2023 and Sri
Durga Prasad Shukla, learned Counsel
for the appellants in Special appeal No.450
of 2023, Sri Ran Vijay Singh, learned
11 All. Mohit Kumar Dwivedi Vs. Ram Janak Maurya & Ors.
483
Additional
Chief
Standing
Counsel
appearing for the State-respondents in
Special Appeal No. 319 of 2018 and Sri J.
N. Mathur, learned Senior Advocate
assisted by Sri Amrendra Nath Tripathi, Sri
Gaurav Mehrotra and Sri Sanjeev Kumar
Mishra, learned Counsel appearing for the
respondent Nos. 1 to 6 in most of the
Special Appeals, who were the original writ
petitioners.

(2) In Special Appeal Defective Nos.
276 of 2021, 13 of 2022, 267 of 2022, 65 of
2023, 68 of 2023, 377 of 2023, 379 of
2023, 387 of 2023, 399 of 2023, 413 of
2023 and 450 of 2023, applications for
condonation of delay supported by an
affidavit have been filed on account of
appeals being instituted with an inordinate
delay.

Without delving into the merits, all the
parties have urged that the applications may
be allowed.

In view of above, all the applications
for condonation of delay filed in Special
Appeal Appeal Defective Nos. 276 of 2021,
13 of 2022, 267 of 2022, 65 of 2023, 68 of
2023, 377 of 2023, 379 of 2023, 387 of
2023, 399 of 2023, 413 of 2023 and 450 of
2023 are allowed and the delay in filing the
appeals are allowed.

(3) An application for leave to file
Special Appeal has been filed in Special
Appeal No. 634 of 2028, Special Appeal
No. 670 of 2018, Special Appeal No. 92 of
2020, Special Appeal Defective No. 193 of
2020, Special Appeal Defective No. 207 of
2020, Special Appeal Defective No. 276 of
2021, Special Appeal Defective No. 267 of
2022, Special Defective No. 68 of 2023,
Special Appeal Defective No. 377 of 2023,
Special Appeal Defective No. 379 of 2023,
Special Appeal Defective No. 399 of 2023,
Special Appeal Defective No. 413 of 2023
and Special Appeal Defective No. 450 of
2023 for the reason that either the
appellants could not succeed in the
selection for appointment on the post of
Assistant Teacher or the appellants belong
to D.Ed./B.El.Ed and all of them have not
filed writ petition before this Court. In
these circumstances, they have prayed that
they may be granted leave to file Special
Appeal as they have not been heard before
the Writ Court.

Since sufficient cause has been shown
by
the
applicants/
appellants,
the
application for leave to file Special Appeal
moved in Special Appeal No. 634 of 2028,
Special Appeal No. 670 of 2018, Special
Appeal No. 92 of 2020, Special Appeal
Defective No. 193 of 2020, Special Appeal
Defective No. 207 of 2020, Special Appeal
Defective No. 276 of 2021, Special Appeal
Defective No. 267 of 2022, Special
Defective No. 68 of 2023, Special Appeal
Defective No. 377 of 2023, Special Appeal
Defective No. 379 of 2023, Special Appeal
Defective No. 399 of 2023, Special Appeal
Defective No. 413 of 2023 and Special
Appeal Defective No. 450 of 2023 is
allowed.

(4) The aforesaid Special Appeals
filed under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952 assails
the judgment and order dated 01.11.2018
passed in a bunch of writ petitions, leading
being Writ Petition No. 11375 (SS) of
2018, Ram Janak Maurya and others v.
State of U.P. and others, whereby the
learned Single Judge has set aside the entire
selection on the post of Assistant Teachers
against 12,460 vacancies initiated in
pursuance of the advertisement issued on
21.12.2016 with certain directions. The
484 INDIAN LAW REPORTS ALLAHABAD SERIES
operative portion of the judgment and order
dated 01.11.2018 reads as under:-

"The respondent Nos.3 and 4 are
directed to initiate fresh proceeding of
selection by fixing a cut of date to appear
in the counselling for selection and
appointment on the post of Assistant
Teachers in accordance with Rule 14 of
U.P. Basic Education (Teachers) Service
Rules, 1981 as existing on the date of
initiation of selection proceeding by issuing
notice in the widely circulated newspapers
of the state level as well as of the locality
permitting the eligible and qualified
candidates to appear in the counselling."

CATEGORIZATION OF APPEALS

(5) Different categories of appellants
have challenged the impugned judgment
and order dated 01.11.2018 and the said
categories are enumerated herein under for
ready reference:

(i) The first category is of the
appellants of Special Appeal Nos. 609 of
2018 and 617 of 2018, who are already
working on the post of Assistant Teacher
based on the selection in question.

(ii) The second category is of the
appellants of Special Appeal No. 613 of
2018
and
Special
Appeal
Defective
Nos.207 of 2020, 276 of 2021, 13 of 2022,
377 of 2023, 379 of 2023, 387 of 2023 and
450 of 2023 who belong to '0' district
vacancy and succeeded in the selection
process but are yet to be appointed.

(iii) The third category is of the
appellants of Special Appeal Defective
Nos. 267 of 2022, 68 of 2023, 399 of 2023
and 413 of 2023 who belong to 'O'
district vacancy and could not succeed in
the selection process based on merit.

(iv) The fourth category is of the
appellants of Special Appeal No.634 of
2018 and 670 of 2018 as also Special
Appeal Defective No.193 of 2020, who are
having the requisite qualification of
D.Ed./B.El.Ed. and have not filed the
writ petition.

(v) The fifth category is of the
appellant, who belongs to 'zero vacancy
district' i.e., Special Appeal No. 92 of
2020 and has joined on the post of
Assistant Teacher on the strength of interim
order passed in writ proceedings on
03.05.2018. It is a peculiar case where the
appointment order of the appellant, who
belongs to 'o' vacancy district, has been
issued by mistake and it is said that it is
a human error.

(vi) The sixth category is that the
appellants of Special Appeal Defective No.
65 of 2023 who belong to 'o' vacancy
district and have not been permitted to
participate in the counselling.

(vii) The seventh category is that the
State
has
challenged
the
impugned
judgment and order in the Special Appeal
No. 619 of 2018.

SUBJECT MATTER

(6) Succinctly, the common case of
the parties is that vide Government Order
dated 15.12.2016, the U.P. Basic Shiksha
Parishad, Allahabad initiated a selection
process for appointing of 12,460 Assistant
Teachers in the Primary Schools. Pursuant
to the said Government Order dated
15.12.2016, the Secretary, U.P. Basic
Shiksha Parishad, Allahabad issued a Letter
dated 20.12.2016 declaring the schedule as
also the vacancies in the districts across the
State
of
U.P.
Subsequently,
online
applications were invited from eligible
candidates for the post of Assistant
Teachers by the respective District Basic
11 All. Mohit Kumar Dwivedi Vs. Ram Janak Maurya & Ors.
485
Education Officers. It also gave a chart of
district-wise vacancies which shows that
out of 75 districts in the state of Uttar
Pradesh, in 24 districts no vacancies were
advertised. These 24 district were termed as
"0" vacancy districts.

(7) Pursuance to the Circular dated
20.12.2016, the advertisement was issued
on 21/22.12.2016 and theBoard then issued
detailed guidelines vide notification dated
26.12.2016. Apparently, the Secretary, U.P.
Basic Education Board issued guidelines on
26.12.2016,
providing
necessary
instructions in Clause 6 (ख), wherein it is
provided that candidates from the districts,
where no vacancies has been notified,
could apply from anyone district of their
first preference across the State. It is also
allowed that the candidates with D.Ed.
(Special Education) and four years B.L.Ed.
could apply in similar manner.

(8) Thereafter, the Secretary, U.P.
Basic Shiksha Parishad, Allahabad issued
another Circular dated 02.03.2017 fixing
schedule from 18.03.2017 to 20.03.2017
for First round Counselling. After first
round of counselling, combined select lists
of home district candidates and the
outside/zero district candidates were
prepared and published for all districts
on 21.03.2017 and 22.03.2017.

(9) However, in the interregnum the
recruitment process was withheld by the
Board vide its order dated 23.03.2017 till
further orders only on the ground that after
the Legislative Assembly Elections, there is
change of Government and on the oral
instructions of the State Government, the
entire process of recruitment has been
abruptly stopped. It is stated herein that a
bunch of writ petitions came to filed
challenging the said order, the lead being
Writ Petition No. 27870 of 2017, Neeraj
Pandey v. State of U.P. and others, wherein
a Single Bench of this court vide judgment
and order dated 03.11.2017 found that the
withholding of the recruitment process to
be not justifiable and without any reasons
and thus set-aside the said order dated
23.03.2017. The said order of the Single
Bench was taken by the State Government
in Special Appeal No. 648 of 2017.

(10) In the meantime, Clause 9(Ka) of
the Circular/guidelines dated 26.12.2016
issued by the Board was challenged by
some candidates in Writ Petition No. 3293
of 2017, Gyan Chandra & others v. State of
U.P. & Others, which was disposed of vide
judgment and the order dated 16.05.2017
quashing the Clause 9(Ka) of the said
guidelines. It may be mentioned herein that
Clause 9(Ka) specified the procedure of
selection and provided that the selection
was to be made on the basis of quality point
marks which was dependent on the division
obtained by a candidate. Apparently, the
concept of division on the basis of
percentage of marks obtained for the
trainee of 2012 BTC was changed to
Grades for 2013 BTC and thus an anomaly
crept in the quality marks methodology for
candidates of 2012 and 2013 batch of BTC,
which led to the said challenge in the
aforesaid writ petition. Subsequently, the
judgment and order dated 16.05.2017
passed by the Single Bench was challenged
in Special Appeal Defective No. 365 of
2017 which was finally disposed of vide
judgment and order dated 06.02.2018
whereby Clause 9(Ka) of the guidelines
was restored and the State Government was
directed to take a decision in respect of
recruitment of 12,460 Assistant Teachers
as per the then existing Rules within four
weeks from the date of passing of the
order.
486 INDIAN LAW REPORTS ALLAHABAD SERIES

(11) The state Government, after
taking into account the aforesaid judgment
and order dated 06.02.2018 passed in
Special Appeal Defective No. 365 of 2017,
issued
a
Government
Order
dated
11.04.2018 directing the respondent Nos.2
and 3 of the aforesaid Appeal to proceed
with the recruitment of 12,460 Assistant
Teachers as per U.P. Basic Education
(Teachers) Service (15th Amendment)
Rules, 1981 subject to the final decision of
Special Appeal No. 648 of 2017, State of
U.P. v. Neeraj Kumar Pandey & others.
The said Appeal was ultimately dismissed
vide order dated 12.04.2018 directing the
respondent authorities to complete the
selection process within two months.

(12) In compliance of the order dated
12.04.2018, the Board issued a Circular
dated 16.04.2018 directing the District
Basic Education Officers to conduct
counselling of the selected candidates on
23.04.2018 and to issue appointment orders
on 01.05.2018.

(13) In pursuance of the Circular
dated
16.04.2018,
the
District
Basic
Education
Officers
concerned
made
advertisements in their respective districts
on 19.04.2018 whereby they had directed
the candidates to appear again for the first
counselling on 23.04.2018.

(14)

When
the
intra-district
candidates who had lower merit than that of
the inter-district candidates got edged out in
51 districts (having vaanacy) and could not
be selected, some candidates of Gonda
District filed Writ Petition No. 11375 (SS)
of 2018, Ram Janak Maurya and others v.
State of U.P. and others. Subsequently, the
writ petitions filed were tagged with the
aforesaid writ petition. In three petitions,
namely, Writ Petition No. 11947 (SS) of
2018, 12656 (SS) of 2018 and 5734 (SS) of
2018, the petitioners prayed for issuance of
a writ of Certiorari quashing instruction
No. 6(Kha) issued on 26.12.2016 to the
extent it allows the candidates of other
districts where there are 'O' vacancies and
notification dated 15.03.2017 to the extent
it allows the candidates of other districts,
where there are 'O' vacancies to be eligible
for selection in other districts on the basis
of first preference.

(15) In Writ Petition No. 11375 (SS)
of 2018, an interim order was passed
directing the authorities to verify the
original documents of the candidates
pursuant
to
the
notification
dated
18.04.2018 published in the newspapers on
19.04.2018 but the appointment letters of
the candidates who obtained BTC Training
from other than Gonda district shall not be
issued till the next date of listing and if it is
required, it may be issued after
seeking leave from the Court.

(16) In compliance of the interim
order dated 19.04.2018, the Secretary
of the Board of Basic Education
issued a Circular dated 27.04.2018
restraining
all
the
District
Basic
Education
Officers
from
issuing
appointment orders to the selected
candidates of 'Zero Districts' who had
participated in the first round of
counselling.

(17) The aforesaid bunch of writ
petitions was allowed vide impugned
judgment and order dated 01.11.2018,
which set-aside the entire selection process
on the ground that there was no provision
under the rules permitting the candidates
from ''0' vacancy districts to participate in
the selection proceeding and therefore,
their participation is contrary to Rule
11 All. Mohit Kumar Dwivedi Vs. Ram Janak Maurya & Ors.
487
14(1)(a) of U.P. Basic Education (Teachers)
Service Rules, 1981.

(18) The present bunch of special
appeals have been filed by the respective
parties against the aforesaid impugned
order dated 01.11.2018.

ARGUMENTS
OF
LEARNED
COUNSEL FOR THE PARTIES

(19) Dr. L. P. Misra, learned counsel
appearing for the appellants submits that
the Secretary of the Board issued detailed
guidelines dated 26.12.2016 for conducting
the
selection
process.
In
order
to
accommodate the candidates from Zero
Vacancy districts, the Secretary of the
Board inducted Clause 6(Kha) wherein it
was provided that the candidates having
D.Ed. (Special Education)/4 Years B.El.Ed.
and the candidates belonging to Zero
Vacancy districts may apply from any of
the districts having vacancies as their first
preference districts. According to the
learned Counsel, the said arrangement
made by the Secretary of the Board was
without any authority of law and rather, it
was in violation of Rule 14(1)/14(1)(a) of
the Rules, 1981. Not only this, the
Secretary of the Board was also not a
competent authority to issue any such
guidelines.

(20) Dr. L.P. Misra, learned counsel in
his usual maverick manner, further submits
that as per guidelines dated 26.12.2016, a
select list containing 12,460 candidates was
prepared wherein the candidates from Zero
Vacant districts were also included. Almost
6,470 candidates from the district of Zero
Vacancies were included in the select list
and almost 5,990 candidates including the
appellants of Special Appeal Nos. 609 of
2018 and Special Appeal No. 617 of 2018
and
similarly
situated
meritorious
candidates, who have completed their
B.T.C. training from 51 districts, where the
vacancies were advertised, have been
selected on the post of Assistant Teachers.
In the Special Appeal No. 617 of 2018, a
Co-ordinate Bench of this Court, vide order
dated 17.11.2018 directed the respondentState not to give effect to the directions
given by the learned Single Judge with
regard to selection and appointments qua
appellants till the next date of listing, which
has been extended till further orders by
subsequent interim order dated 22.07.2019.

(21) He further submits that the result
of the aforesaid interim order is that the
interim order dated 19.04.2018 passed by
the Single Bench during the pendency of
the impugned writ petition has been
restored along with the Circular dated
27.04.2018 issued by the Board and as such
the appointment letters, which were issued
to these 5,990 selected candidates of home
districts in the first week of May, 2018 also
stands restored and as a matter of fact &
records, these aforesaid appellants and
similarly situated selected candidates who
gave their joining in their allocated schools
are continuing working as such till date.

(22) Next he submitted that the
selection/appointment of the aforesaid
5,990 meritorious candidates has never
been challenged in any of the writ petitions
before the learned Single Judge nor they
had been impleaded in any of the writ
petitions even in the representative capacity
and the writ petitions filed before the
learned Single Judge had been disposed of
without their representation.

(23) Considering the aforesaid aspect
of the matter, Dr. L. P. Misra has contended
that since the selection and appointment
488 INDIAN LAW REPORTS ALLAHABAD SERIES
of 5,990 candidates had been made in
accordance with the Rules existing on
the date of initiation of selection process,
they had substantiated their rights of
selection on the post of Assistant Teacher,
therefore their appointment deserves to
be protected.

(24) Elaborating his submissions on
Clause 6(Kha) of the guidelines dated
26.12.2016, Dr. L.P. Mishra has submitted
that this clause has three-fold instructions.
Firstly, B.T.C. trained candidates are to
apply in the district of their training (as per
Rule 14 (1)(a) of Rules, 1981); Secondly,
B.Ed. (Special Education) and B.El.Ed.
trained candidates to apply in any district of
their choice as first priority district and
thirdly, candidates having passed B.T.C.
training from 24 Zero Vacancy districts
were also allowed to apply in any district of
their choice as first priority district (which
according to him was in violation of Rule
14(1)(a) of Rules, 1981).

(25) Next he has contended that the
petitioners/respondents herein belonging to
24 zero vacancy districts participated in the
recruitment and when they failed to secure
selection, they challenged Rule 14(1)(a) of
Rules, 1981 and Clause 6 (Kha) of the
guidelines dated 26.12.2016 so far as it
provides preference to the candidates
having completed their training from the
district concerned. Further, candidates of
51 districts, who failed to secure selection
on account of participation of candidates
of zero vacancy districts, challenged
Clause 6(Kha), so far as it opened
window
for
the
participation
of
candidates of 24 Zero vacancy districts
by means of Writ Petition No. 11375 (SS)
of 2018 and the learned Single Judge
restrained the authorities from issuing
appointment letters who obtained B.T.C.
training from 'Zero Vacancy Districts'
and the said writ petition was finally
allowed vide impugned judgment and
order dated 01.11.2018 setting aside the
entire selection.

(26)

Attacking
the
impugned
judgment and order dated 01.11.2018,
preliminary objections of Dr. L.P. Mishra
are that (i) impugned order has been passed
beyond the scope of writ petition, (ii)
cancellation of entire selection en block
was unjustified, (iii) there was no challenge
to the selection and appointment of
working teachers, (iv) comparatively, 5,990
selected and appointed teachers have higher
merit as they have substantiated their rights
on their posts (v) writ petitions suffer from
the defect of non-joinder of parties, (vi)
cancellation of entire selection is without
any cogent finding and lastly, (vii) order
passed is in violation of principles of
natural justice.

(27) Dr. L.P. Mishra has further
submitted that a Division Bench of this
Court in a bunch of writ petitions, leading
Writ Petition No. 5320 (MB) of 2017,
Ambrish Kumar and 20 others v. State of
U.P. others, vide judgment and order dated
13.01.2020,
dismissed
the
writ
petitions upholding the validity/vires
of Rule 14(1)/14(1)(a) of the Rules,
1981. Thus, he submits that this Court
is to test the validity of the impugned
judgment and order dated 01.11.2018
in light of Rule 14 as it existed on the
date of initiation of the selection
proceeding of 12,460 recruitment, i.e.,
15.12.2016
and
the
validity
of
guidelines dated 16.12.2016 which has
been
issued
by
an
incompetent
authority in utter violation of Rule 14
(1)(a) as existing on the date of
selection of Assistant Teaches.
11 All. Mohit Kumar Dwivedi Vs. Ram Janak Maurya & Ors.
489

(28) To sum up his arguments, Dr.
L.P.Misra has submitted that the selection
and appointment of 5,990 candidates who
had been selected in the districts from
where they completed their B.T.C. training
are absolutely in accordance with the
provisions of Rule 14(1)/14(1)(a) of the
Rules, 1981 and accordingly, they had been
appointed. The learned Single Judge was
not justified to set aside the entire selection
of 12,460 recruitment en block merely on
the ground that Clause 6(Kha) of the
Guidelines dated 26.12.2016 providing an
opportunity
for
participation
and
consideration of selection to the candidates
from 24 Zero Vacancy Districts was per se
illegal and is in violation of Rule 14
(1)/14(1)(a) of Rules, 1981. Further, he
submits that the entire selection cannot be
cancelled en block. To buttress his
submissions, he has relied upon the citation
of Apex Court in the case of Girjesh
Srivastava v. State of M.P. [(2010) SCC
(10) 707], wherein in para - 25 it has been
reported as under:-

"25. On a more detailed analysis
of this issue, in Union of India and others v.
Rajesh P.U., Puthuvalnikathu and another
[(2003) 7 SCC 285 at p. 290, paragraph 6],
this Court held that "In the light of the
above and in the absence of any specific or
categorical finding supported by any
concrete
and
relevant
material
that
widespread infirmities of an all pervasive
nature, which could be really said to have
undermined the very process itself in its
entirety or as a whole and it was impossible
to weed out the beneficiaries of one or
other of irregularities, or illegalities, if any,
there was hardly any justification in law to
deny appointment to the other selected
candidates whose selections were not found
to be, in any manner, vitiated for any one or
other reasons. Applying an unilaterally
rigid and arbitrary standard to cancel the
entirety of the selections despite the firm
and positive information that except 31 of
such selected candidates, no infirmity could
be found with reference to others, is
nothing but total disregard of relevancies
and allowing to be carried away by
irrelevancies, giving a complete go bye to
contextual
considerations
throwing
to
winds the principle of proportionality in
going farther than what was strictly and
reasonably required to meet the situation.
In
short,
the
Competent
Authority
completely misdirected itself in taking
such an extreme and unreasonable
decision
of
cancelling
the
entire
selections,
wholly
unwarranted
and
unnecessary even on the factual situation
found too, and totally in excess of the
nature and gravity of what was at stake,
thereby virtually rendering such decision
to be irrational".

(29) Sri Anil Tewari, learned Senior
Advocate assisted by Sri Apoorva Tewari,
learned Counsel appearing for the appellant
in Special Appeal No. 613 of 2018 has
submitted that the appointment of Assistant
Teachers in Junior Basic School is
regulated by the U.P. Basic Education
(Teachers) Service Rules, 1981 as well as
The Right of Children to Free and
Compulsory Education (RTE) Act,
2009. Before enforcement of RTE
Act, Rule 8 and Rule 14 of Rules,
1981 were in force for academic
qualification
and
procedure
of
selection
respectively.
However,
after
enforcement
of
RTE
Act,
minimum
qualification
to
be
appointed as an Assistant Teacher is
in the domain of Central Government
who has authorized the National
Council under Section 23 (1) of the
RTE Act.
490 INDIAN LAW REPORTS ALLAHABAD SERIES

(30)

In
continuation
of
his
submissions, he has submitted that the State
Government issued a Government Order on
15.12.2006 for appointment of Assistant
Teachers on vacant posts of 12,460 in Basic
Schools of U.P. run and managed by the
U.P. Basic Education Board. He next
submitted
that
the
Secretary,
Basic
Education has further issued guidelines on
26.12.2016
providing
necessary
instructions wherein it has been mentioned
that in view of Harsh Kumar's judgment
passed in Special Appeal Defective No. 130
2014, para 6(Kha) has been included for
those
candidates
who
have
obtained
B.El.Ed. and D.Ed. Qualification as also for
those candidates who have obtained B.T.C.
training from the districts where no
vacancies have been advertised.

(31) The appellant/Mohit Kumar
Dwivedi of Special Appeal Defective No.
613 of 2018, who is the resident of Gonda
and has obtained B.T.C. training from
Lucknow has applied for appointment on
the
post
of
Assistant
Teacher.
On
15.03.2017, the District Basic Education
Officer, Gonda and other District Basic
Education Officers had published a notice
for participation for those candidates who
had applied in their districts in the first
counselling to be held from 18.03.2017 to
20.03.2017.

(32) Pursuant to the above notice, the
appellant and respondent Nos.1 to 6 of
Special Appeal Defective No. 613 of 2018
had participated in the first round of
counselling and on 20.03.2017, cut-off was
declared by the Basic Education Officer,
Gonda in which the appellant was declared
successful whereas respondent Nos.1 to 6
were declared unsuccessful. He has further
pointed out that original documents of the
appellant and other successful candidates
were
retained
whereas
the
original
documents of respondent Nos.1 to 6 were
returned on the next date.

(33) Sri Tewari has brought to our
notice that on 23.03.2017, when the State
Government has issued a Circular for
halting the current selection process until
further other, on intervention of High Court
in Writ Petition No. 27870 of 2017, the
aforesaid Circular was quashed vide
judgment and order dated 03.11.2017
directing the State Government to complete
the selection process within two months. In
compliance of the order dated 03.11.2017,
the State Government has issued a
Government Order dated 11.04.2018 for
completing
the
selection
process
by
15.06.2018.

(34) Next he has pointed out that in
the meantime, on 08.02.2018, the State
Government has amended Rule 14 (1)(a) of
Rules 1981 to the effect that the condition
'District concerned' has been deleted.

(35) Pursuant to the Government
Order
dated
11.04.2018,
when
the
Secretary, Basic Education Board has
issued a Circular on 16.04.2018 declaring
the successful candidates, Writ petition No.
11375 (SS) of 2018, Ram Janak Maurya v.
State of U.P. and others with the following
prayer came to be filed:-

"(i) To issue writ of Mandamus
commanding the respondent Nos. 3 and 4
to prepare fresh cut off mark after 1st round
of counselling by excluding the persons
who had obtained B.T.C. Training from
outside the district Gonda and accordingly
a fresh cut off of 1st round of counselling to
be
declared
in
pursuance
of
the
Government
Order
dated
15.12.2016/11.04.2018 and notification of
11 All. Mohit Kumar Dwivedi Vs. Ram Janak Maurya & Ors.
491
respondent
No.3
dated
26.12.2016,
02.03.2017
and
16.04.2018
for
appointment of 12460 pots of Assistant
Teachers by allowing only the persons who
had completed B.T.C. degree from the
District Gonda only and outsiders to be
allowed
in
subsequent
rounds
of
counselling only as per policy of the State
Government reflected in counter affidavit
filed by it in Writ Petition No. 10131 of
2015 (M/B) Om Prakash Singh and others
v. State of U.P.

(ii) To issue any other writ or
direction, which this Hon'ble High Court
may deem fit in the circumstances of the
case."

(36) He has next pointed out that from
perusal of the above prayers made by the
respondents, it is crystal clear that the
respondents have not challenged the
provision of Clause 6(Kha) of Circular
dated 26.12.2016 and the only prayer made
by them is to exclude the candidates who
had obtained training from outside district
Gonda in the first round of counselling and
permit them in the subsequent round of
counselling.

(37) The contention of the learned
counsel for the appellant is that the writ
petition filed by the respondent Nos.1 to 6
is not maintainable on the ground that in
view of the judgment passed by the Apex
Court in Dhananjay Malik v. State of
Uttaranchal and others [(2008) 4 SCC
171], the unsuccessful candidates have no
right to question the selection proceedings.
Further, he has submitted that in order to
maintain the writ of Mandamus, they must
make a clear demand before the competent
authority, but in the instant case, they have
had never made any demand before the
competent
authority.
To
buttress
his
submissions, he has drawn our attention
towards the judgments of the Apex Court in
D. N. Jeevaraj v. Chief Secretary,
Government of Karnataka and others
[(2016) 2 SCC 653] and State of Haryana
and another v. Chanan Mal and others
[(1977) 1 SCC 340]. In both the judgments,
it has been held that the petitioner shall first
call upon the authority concerned to
discharge its legal obligation and show that
it has refused or neglected to carry it out
within
a
reasonable
time
before
approaching the Court for such an order
even where the alleged obligation is
established.

(38) Further, he has submitted that the
writ petition filed by the respondents is also
not maintainable on the ground of nonjoinder of parties as they have not
impleaded any selected candidate in the
representative capacity.

(39) The next submission of Sri Anil
Tewari is that the writ petition filed by the
respondents has been allowed by the
learned Single Judge mainly on the ground
that the Secretary, Basic Education Board
was not competent to issue Circular dated
26.12.2016 containing clause 6(Kha) which
permitted the candidates of Zero Vacancies
to participate in the selection process,
specifically when there was no such
provision under the Rules and the
State Government has not authorized
the Board to issue such a Circular.
However, according to the learned
Counsel, the learned Single Judge,
while
passing
the
impugned
judgment, has failed to appreciate
the fact that the said circular was
issued strictly in consonance of the
judgment passed by this Court in
Special Appeal Defective No. 130 of
2014, Harsh Kumar and another v.
State of U.P. and others.
492 INDIAN LAW REPORTS ALLAHABAD SERIES

(40) Learned Counsel for the
appellant has further drawn our attention
towards
the
dismissal
order
dated
13.01.2015 passed by the Apex Court in
Special Leave Petition No. 12060-12061 of
2014 preferred against the order passed in
Special Appeal Defective No. 130 of 2014.

(41) Lastly, he has submitted that in
these circumstances, U.P. Basic Education
Board has included the provision of Clause
6(Kha) in the Circular dated 26.12.2016,
therefore, there was no infirmity in the
Circular
dated
26.12.2016
and
the
impugned judgment and order dated
01.11.2018 is liable to be set aside paving a
way for the appellant to participate in the
counselling process.

(42) Sri Upendra Nath Mishra,
learned Senior Advocate assisted by Sri
Neel Kamal Mishra, learned counsel
appearing for the appellants in Special
Appeal No. 207 of 2020 has submitted that
the main ground on which the entire
selection has been set aside by the learned
Single Judge was that the Board of Basic
Education was not competent to issue the
Circular
dated
26.12.2016
containing
Clause 6(Kha) permitting the candidates
from 'O' vacancy districts to participate in
the selection proceedings, especially when
there was no such provisions under the
Rules and the State Government had not
authorized the Board to issue such a
circular. According to the learned Senior
Counsel, the said Circular issued by the
Board was strictly in consonance with Rule
23 of RTE Act enacted by the Parliament
read with Office Memorandum dated
23.08.2010
alongwith
similar
other
notifications of Government of India and
he submits that there is no infirmity in the
aforesaid Circular dated 26.12.2016 due to
which the entire selection was quashed.
Thus, he prays that the appellants who have
been selected on the basis of their higher
merit deserves to be appointed.

(43) Sri Ran Vijay Singh, learned
Additional
Chief
Standing
Counsel
appearing for the State-respondents in
Special Appeal No. 619 of 2018 has
submitted that once the petitioners have
participated in the selection process, they
have no right to challenge it. In support of
this, he has placed reliance on the judgment
of the Apex Court in Ranjan Kumar v. Stat
of Bihar [(2014) 16 SCC 187].

(44) He has contended that no
pleading is made in the entire writ petition
that the petitioners were unaware of the
circulars issued by the State Government
whereby participation of 'Zero Vacancy
District Candidates' was permitted. Since
they
have
participated
and
declared
unsuccessful, they cannot take the nosedive
stand.

(45) Further, he has submitted that
Section 23 of the RTE Act has an
overriding effect. As per Entry 25 in the
List III Concurrent List of the Constitution
of India, it covers 'education' including
technical education, medical education and
universities, subject to the provisions of
Entries 63, 64, 65 and 66 of List I;
Vocational and Technical Training of
Labour. Since this entry covers education,
by implication both Center and State
Legislatures are competent to enact a law
with regard to it.