# Nirankar Pathak & Ors v. Sri Ashish Goel & Ors. OppositeParties

- **Citation:** (2019) 2 ILRA 1354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-04-22
- **Case number:** Contempt No. 2622 of 2015
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirankar-pathak-ors-v-sri-ashish-goel-ors-oppositeparties-44590
- **Pages:** 21

## Headnote

A. Contempt of Courts Act, 1971- Section
2(b) - the contempt is between the Court
and the contemnor and the aggrieved
party cannot insist that the Court should
exercise such jurisdiction-The discretion
is
exercised
by
the
Court
for
maintenance of Court's dignity and
majesty of law- Contempt jurisdiction is
invoked and punishment is imposed to
uphold the authority of Court to punish
the contemnor and to act as a deterrent
to others- This deterrent is motivated in
the interest of the public in order to
prevent
future
incidents
of
wilful
disregard and disobedience of the Court
orders by a party. (Para 22 to 43)

Contempt Application dismissed (E-6)

Case Law discussed: -

## Text

_Characters 0–39,935 of 70,544. This is a partial read: ask again with offset=39935 for what follows._

1354 INDIAN LAW REPORTS ALLAHABAD SERIES
Tax Vs. Simplex Concrete Piles (India)
Limited
reported
in
(2012)
25
taxmann.com 283 (SC) has held as
under:-

"3. We see no error in the
observation made by the Divisoin Bench
of the High Court in the impugned
judgement that once limitation period of
four
years
provided
under
Section
147/149(1A) of the Income Tax Act, 1961
(for short, Rs. The Act') expires then the
question of reopening by the Department
does not arise. In any event, at the relvant
time, when the assessment order got
completed, the law as declared by the
jurisdictional High Court, was that the
civil construction work carried out by the
assessee would be entitled to the benefit
of Section 80HH of the Act, which view
was squarely revsersed in the case of CIT
Vs. N.C. Budharaja & CO. (1993) 204
ITR 412/70 Taxman 312 (SC). The
subsequent reversal of the legal position
by the judgement of the Supreme Court
does not authorize the Department to
reopen the assessment, which stood
closed on the basis of the law, as it stood
at the relevant time."

25. In view of the above cited
judgements and the principles enunciated
therein, reopening of the proceeding of
completed assessment in question renders
bad and in colourable exercise of powers
and without jurisdiction.

26. It is evidently clear that the
assessment, once has become final,
should not have been reopened on the
basis of subsequent judgment of the Apex
Court.

27. In view of the aforesaid facts
and circumstances, we are of the opinion
that the present reassessment proceedings
have been initiated on the basis of
subsequent judgement of the Apex Court,
which
cannot
be
used
to
reopen
assessment or disturb past assessment
which
have
been
concluded.
The
Department cannot be authorized to
reopen the assessment, which stood
closed on the basis of the law as it stood
at the relevant time.

28. We also take judicial notice of
the fact that the country is entering into a
new era of taxation,i.e., Goods & Services
Tax (GST), so the dealers and the
Department are set to take up a new
challenge of the said Goods & Services
Tax. It will be in the interest of both, the
dealers as well as the Department, that all
old pending matters to be decided at the
earliest and attain finality.

29. In the result, the writ petition
succeeds and is allowed. The impugned
order dated 30.03.2017 passed by the
respondent no. 1 for the Assessment Year
2009-10 as well as the consequential
notice
dated
22.04.2017
for
the
Assessment Year 2009-10 issued by the
respondent no. 2 are here by quashed.
----------

(2019)10ILR A 1354

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2019

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Contempt No. 2622 of 2015
&
15 Other Contempt Cases No. 2627 of 2015,
279 of 2016, 278 of 2016, 280 of 2016, 283 of
2016, 284 of 2016, 285 of 2016, 331 of 2016,
2 All. Nirankar Pathak & Ors. Vs Sri Ashish Goel & Ors.
1355
2007 of 2012, 2745 of 2012, 1657 of 2016, 95 of
2012, 97 of 2012, 3453 of 2011 & 2072 of 2017

Nirankar Pathak & Ors. ...Applicants
Versus
Sri Ashish Goel & Ors. ...OppositeParties

Counsel for the Applicants:
Sri Ramesh Kumar Srivastava

Counsel for the Opposite Parties:
Sri Ajay Kumar, Sri Bhanu Pratap Singh

A. Contempt of Courts Act, 1971- Section
2(b) - the contempt is between the Court
and the contemnor and the aggrieved
party cannot insist that the Court should
exercise such jurisdiction-The discretion
is
exercised
by
the
Court
for
maintenance of Court's dignity and
majesty of law- Contempt jurisdiction is
invoked and punishment is imposed to
uphold the authority of Court to punish
the contemnor and to act as a deterrent
to others- This deterrent is motivated in
the interest of the public in order to
prevent
future
incidents
of
wilful
disregard and disobedience of the Court
orders by a party. (Para 22 to 43)

Contempt Application dismissed (E-6)

Case Law discussed: -

1. Mohd. Sartaj Vs St. of U.P. (2006) 2 SCC 313

2. Secretary A.P. Public Service Commission Vs
Y. V.V.R. Srinivasulu & ors. (2003) 5 SCC 341

3. Rama Narang Vs Ramesh Narang & anr.
(2006) 11 SCC 114

4. Nisha Kanto Roy Chowdhury Vs Smt. Saroj
Bashini Goho AIR 1948 Calcutta 294

Bajranglal Gangadhar Khemka & anr. Vs
Messrs. Kapurchand Ltd. AIR 1950 Bombay
336
5. Ashok Paper Kamgar Union & ors. Vs
Dharam Godha & ors. AIR 2004 SC 105
6. T.M.A. Pai Foundation Vs St. of Kar. (2002)
8 SCC 481

7. Amar Singh Vs K. P. Geetakrishnan

8. S. Balasubramaniyam Vs P. Janakaraju &
anr. 2004 (5) Kar L.J. 338

9. Bank of baroda Vs Sadruddin Hasan Daya &
anr. (2004) 1 SCC 360

10. Kanwar Singh Saini Vs H.C. of Delhi (2012)
4 SCC 307

11. Daroga Singh Vs B.K. Pandey [(2004) 5
SCC 26 : 2004 SCC (Cri) 1521]

12. Niaz Mohammad & ors. Vs St. of HA. &
Ors. (1994) 6 SCC 332

13. Ram Kishan Vs Tarun Bajaj & ors. (2014)
16 SCC 204

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. In all the contempt petitions,
similar relief (s) has been prayed for by
the applicants/petitioners, therefore, they
are being decided collectively by this
common
order.
For
the
sake
of
convenience, facts of Contempt Petition
No.2622 of 2015 (Nirankar Pathak and
others vs. Sri Ashish Goel, Posted As
Prin. Secy. Basic Edu. Lko.& Ors.) are
being taken up for deciding the matter.

2. All the contempt petitions have been
filed for willful non-compliance of order dated
29.04.2008 passed by a Division Bench of this
Court in a Bunch of Special Appeals leading
Special Appeal No.530 of 2004 (U.P. Board
of Basic Education vs. Om Prakash Shukla
and others) by which it was directed to the
opposite parties to consider the case of the
appellants. The operative portion of the order
reads as under:
1356 INDIAN LAW REPORTS ALLAHABAD SERIES

"We, therefore, while upholding
the order passed by the learned Single
Judge direct that all such candidates be
considered for being sent on training as
per Rules and it norms by giving them
preference but for that matter, age will
not come in their way and their
candidatures shall not be rejected merely
on the ground of being over age.

Let
aforesaid
exercise
be
completed within a maximum period of
two months. The candidates who are
selected for being sent for Special B.T.C.
Training Course shall be considered for
appointment as per Rules. We further
direct that all those candidates who have
filed writ petitions and if they have
worked, for any period, they shall be paid
salary only for the period for which tehy
had worked.

With the aforesaid directives, all
the Special Appeals stands disposed of."

3. The brief facts of the case for
proper adjudication of the contempt
petitions are as follows:

i. On 19.01.1991, 315 posts of
Assistant Teachers in Basic and Primary
School, District Bahraich were advertised
and the qualification of the candidates
having B.T.C. or equivalent to B.T.C.
were required. Some of the applicants,
who had possessed B.Ed. degree have not
been found eligible and their applications
were not entertained. They have filed a
Bunch of writ petitions leading No.2447
(S/S) of 1991 (Triveni Prasad Pandey and
others vs. State of U.P. and others) before
this Court. All the writ petitions were
partly allowed by a common judgment
and order dated 23.12.1992, against which
the State of U.P. has preferred a Special
Appeal bearing No.21 of 1993 (State of
U.P. Vs. Triveni Prasad Pandey), which
was dismissed on 01.11.2001. The Special
Leave Petition was filed before the
Hon'ble Suprme Court by the State
against the judgment and order dated
01.11.2001 passed by the Division Bench.
The Special Leave to Appeal was
dismissed as withdrawn vide order dated
22.04.2002.
Another
Special
Leave
Petition has also been filed against the
judgment and order dated 01.11.2001,
which was also dismissed as withdrawn
by the Hon'ble Apex Court vide order
dated 01.08.2003.

ii. On 20.12.1995, nearly 1000
(one
thousand)
fresh
vacancies
of
Assistant Teacher in Bahraich District
were advertised in which the qualification
was B.T.C. or equivalent to B.T.C.
Against the said advertisement dated
20.12.1995, various writ petitions were
filed. The said writ petitions were decided
by common judgment and order dated
30.11.2002 extending the benefit of
judgment and order dated 23.12.1992
passed in the Bunch of petitions leading
No.2447 (S/S) of 1991 (Triveni Prasad
Pandey and others vs. State of U.P. and
others) and also the benefit of judgment
and order dated 01.11.2001 passed in
Special Appeal no.21 of 1993 (State of
U.P. Vs. Triveni Prasad Pandey).

iii. Several contempt petitions
were filed for non-compliance of the
order dated 30.11.2012. The State of U.P.
vide
order
dated
10.04.2003
and
28.05.2003 had given the appointment to
all the candidates. They had joined their
services.

iv.

Vide
order
dated
07.08.2003; 08.08.2003 and 11.08.2003,
the appointments so made as Assistant
Teacher were cancelled by declaring all
appointments as void abinitio.

v. Against the cancellation of
the appointments, several writ petitions
2 All. Nirankar Pathak & Ors. Vs Sri Ashish Goel & Ors.
1357
were filed before the High Court. Interim
orders were also passed by the High Court
in the writ petitions. During the pendency
of the writ petitions, an advertisement
dated 22.01.2004 was issued for the
selection of Special B.T.C. training. Vide
order dated 26.05.2004, the High Court,
Lucknow Bench has modified the interim
order to the extent that the result of the
selection for Special B.T.C. Training can
be declared but the selected candidates
shall not be appointed on the post of
Assistant Teachers occupied by the writ
petitioners. It was further directed that
263 posts shall be kept vacant till the
disposal
of
the
writ
petitions.
Subsequently, all the writ petitions which
were filed against the cancellation of the
appointment were decided by common
judgment and order dated 17.09.2004
passed by the learned Single Bench. The
operative portion of the order reads as
under :

"In view of the above, all the
aforesaid writ petitions are disposed of
finally with the following directions :

The
impugned
orders
of
cancellation of appointment in case of the
petitioners who were party to the writ
petitions which were decided as bunch of
writ
petitions
vide
judgment
dated
13.12.1992, Annexure 7, are set aside.
They will be reinstated on their posts on
which they were working at the time of
issuance of the impugned orders of
cancellation of appointments. They shall
also be paid salary for the period they
have worked as Teacher. They will be
considered for sending Special B. T. C.
Course, 2004.

In case of the other petitioners
who are not party in the writ petitions
decided on 23.12.1992 vide judgment
Annexure 7, the impugned orders for
cancellation of appointment are set aside
on the statement of Advocate General
with the direction to the opposite parties
to consider their cases for selection to the
special B.T.C. course irrespective of the
fact whether they have applied for the
same or not. If they are found suitable in
accordance with the amended provision
under the Basic Teachers Education
Rules, they will be sent for Special B.T.C.
Course 2004 in preference of others. The
age limit will not come in their way if they
have crossed the upper age limit in
litigating
the
matter
after
their
appointment and if they were within the
maximum age limit on the date of the
earlier appointment they will be entitled
to get relaxation in age if they are over
age on the date of consideration for
special B.T.C. These petitioners will be
paid salary for the period they have
worked and they will not be entitled to get
any salary till they are sent for training to
Special B.T.C. They will be given the
same allowance during the training
period which other candidates of Special
B.T.C. shall be paid and after completion
of Special B.T.C. they will be given
appointment on the post of Assistant
Teacher in primary schools like others.

These
directions
shall
be
complied with within a period of four
weeks from the date of this judgment."

vi. Against the said order dated
17.09.2004, various special appeals had
been filed and the said special appeals
were decided by common judgment and
order dated 29.04.2008. The judgment
and order dated 29.04.2008 were not
complied with by the State/opposite
parties, then the applicants have filed
various contempt petitions including the
present one before this Court.

vii. The State Government had
preferred Special Leave Petition before
Hon'ble the Apex Court. Hon'ble the
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court vide order dated 26.09.2008,
stayed the contempt proceedings pending
before this court. Vide order dated
09.09.2011, the interim order dated
26.09.2008 was vacated. The State has
filed the recall application of the order
dated 09.09.2011, which was rejected
vide order dated 07.12.2011 and the
Hon'ble Apex Court directed to the
opposite parties to comply with the
judgment and order dated 29.04.2008
within a period of ten weeks.

viii. After the order dated
07.12.2011 passed by Hon'ble the Supreme
Court, the Secretary, Basic Education had
given an undertaking on 08.12.2011 to
comply with the judgment and order dated
29.04.2008. On the basis of undertaking
given, the Secretary, Basic Education has
issued an order dated 06.03.2012 canceling
the termination order dated 07.08.2003.
Thereafter another Government Order dated
16.04.2012 was issued directing the Director
of Basic Education, U.P., Lucknow to ensure
the compliance of the order passed by this
Court.

ix. Special Leave Petitions filed
against the judgment and order dated
29.04.2008 came up for hearing on
03.09.2015, where statement was made
that
the
process
for
issuance
of
appointment letters were in process and
the decision shall be taken within four
weeks. Vide order dated 14.10.2015, all
the
Special
Leave
Petitions
were
dismissed. The State has filed a recall
application for recall of judgment and
order dated 14.10.2015 but the same had
been dismissed as withdrawn vide order
dated 09.09.2016. The State has filed a
review application for reviewing of the
judgment and order dated 14.10.2015
before Hon'ble the Apex Court, which
was also dismissed vide order dated
12.04.2017.

4. Learned counsel appearing on
behalf of the petitioners has submitted
that
all
the
respondents
have
full
knowledge of the judgment and order
dated
17.09.2004,
29.04.2008
and
14.10.2015 but all the opposite parties
were sitting tight over the matter and not
complying with the directions given by
this Hon'ble Court as well as the
undertaking given before Hon'ble the
Apex Court.

5. The learned counsel for the
petitioners has submitted that against the
common judgment and order dated
17.09.2003, various Special Appeals were
filed by the respondents. While deciding
all the Special Appeals, the Division
Bench of this Court directed the opposite
parties to consider the applicants for being
sent on training within the maximum
period of two months vide order dated
29.04.2008. The petitioners have served
the copy of judgment upon the Basic
Shiksha Adhikari on 07.06.2008 and the
secretary Basic Education. The opposite
parties have not complied with the orders
passed by the Division Bench of this
Court in the Special Appeals and the
petitioners were not sent for the training
as directed by the Court though all the
petitioners are fully eligible and qualified
to be sent for training of B.T.C. Course.
When no action was taken on the basis of
the judgment and order dated 29.04.2008,
then the petitioners have filed the
contempt petition bearing no.1485 of
2008. In the said contempt petition,
notices were issued to the responsible
officers
i.e.
the
Secretary
Basic
Education, U.P., Lucknow, Director of
Education Basic.

6. The learned counsel for the
petitioners also submitted that after
2 All. Nirankar Pathak & Ors. Vs Sri Ashish Goel & Ors.
1359
receiving the notice under the Contempt of
Courts Act, the opposite parties have
preferred a Civil Appeal No.7792-78110 of
2011 before Hon'ble the Apex Court.
Hon'ble the Apex Court has stayed the
contempt proceedings. It is submitted that
the said stay was vacated vide order dated
09.09.2011. The State had filed a recall
application before Hon'ble the Apex Court
and the same was rejected vide order dated
07.12.2011. The State has filed second
application for recall of order dated
09.09.2011 but again the Hon'ble Apex
Court had rejected the application for recall
of order dated 09.09.2011 and directed the
opposite parties to comply with the
directions issued by the Division Bench of
the High Court vide order dated 29.04.2008.
The contempt petition was listed on
08.12.2011 on which date the then
Secretary Basic Education has given an
undertaking that the order of the High Court
dated 29.04.2008 will be complied with
within the period extended by the Hon'ble
Supreme
Court.
On
the
statement/undertaking given by the then
Secretary, Basic Education the contempt
petition was dismissed on 08.12.2011.

7. Th learned counsel for the petitioners
further submitted that the Civil Appeal Nos.
7792 - 78110 of 2011 have also been
dismissed on 14.10.2015 by the Hon'ble
Supreme Court. Learned counsel for the
petitioners has submitted that the opposite
parties have full knowledge of the judgment
and order dated 17.09.2004, 29.04.2008 and
14.10.2015 but they have not complied with
the orders passed by this Hon'ble Court as
well as by Hon'ble the Apex Court. Therefore,
the action of the opposite parties are
deliberate,
intentional
and
amounts
to
contempt of this Hon'ble Court and the
opposite parties are liable to be punished
under the Contempt of Courts Act, 1971.

8. The learned counsel for the
petitioners has submitted that in the
earlier contempt petition bearing No.1485
of 2008, an application for recall of the
order dated 08.12.2011 was moved but
since
the
said
application
is
not
maintainable,
therefore,
the
present
petition is preferred.

9. The learned counsel for the
petitioners submitted that on 23.12.2016,
the Coordinate Bench of this Hon'ble
Court has directed the opposite parties to
re-examine the issue and file an affidavit
of compliance. In pursuance of the order
dated 23.12.2016, the opposite party no.5
instead of re-examining the issue, has
constituted a Committee of Director,
Rajya
Shaikshik
Anusandhan
Evam
Prashikshan
Parishad,
Uttar
Pradesh
Lucknow who submitted its report on
10.02.2017 to the opposite party no.5 and
on the basis of which, the opposite party
no.5 has sought information from the then
learned Advocate General and after
receiving the information, the opposite
party no.5 issued a letter to the opposite
party no.2 and Director, S.C.E.R.T.
Lucknow on 08.03.2017 that too without
application of mind. Learned counsel for
the petitioners has submitted that on the
basis of the judgment and order dated
29.04.2008, 27 candidates belonging to
the Ist Category, the proceedings of
reinstatement
be
done
and
further
proceeding for sending the training of one
Gita Sonker be started but nothing has
been done in respect of the 229 candidates
belonging to the category II, III and IV.

10. It is submitted that the contents
of the report of the committee related to
the disputes of the illegal appointment of
Assistant Teachers of District Bahraich
inspite of the facts that this Hon'ble Court
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
was set aside the order of cancellation of
the appointment and Special Leave
Petition filed by the opposite parties had
been dismissed by the Hon'ble Supreme
Court. Therefore, the recommendation of
the Committee is nothing but amounts to
contempt of this Court.

11. The learned counsel appearing
on behalf of the petitioners submitted that
in respect of the candidates belonging to
the Category II, III and IV, the Committee
had given its finding that this Court has
decided to send the candidates on training
according to the Rules. The committee
has further recorded the finding that the
appointment of the Assistant Teacher are
to be made according to the U.P. Basic
Education
(Teachers)
Service
Rules,
1981, which has been framed under the
provisions of the U.P. Basic Education
Act, 1972 and all the applicants were
appointed on the basis of qualification of
B.Ed./L.T. but the said qualification was
not included in the Service Rules of 1981.
The committee has further accorded the
finding that all appointments were illegal.
The committee has recorded the finding
that from time to time the State
Government
has
issued
Government
Order for training of B.Ed. candidates
after approval from N.C.T.E. such as
Special B.T.C. 2004.

12. Learned counsel for the
petitioners
also
submitted
that
the
committee has extended its brief in
recording the finding that according to the
present guidelines of N.C.T.E., the
candidates having B.Ed. qualification are
not eligible for appointment as Assistant
Teacher in Primary School from Class 1
to 5. The Committee has further recorded
the finding that if the Government is
taken the decision to send them for
training then in such situation, separate
training of Special B.T.C. will be required
for which approval from N.C.T.E. will be
required.

13. Learned counsel for the
petitioners has submitted that the report of
the
committee
dated
10.02.2017
is
perverse and incorrect on the following
grounds :

(a) The order of cancellation of
appointment was set aside and opposite
parties were directed to consider the
candidates for training of Special B.T.C.
under the amended provisions of the
Service Rules. The judgment of this
Hon'ble Court dated 17.09.2004 was same
for all the categories but committee has
failed to understood the same judgment
and order dated 17.09.2004.

(b) This Hon'ble Court while
upholding the judgment of the Hon'ble
Single Judge dated 17.09.2004 in Special
Appeal has directed on 29.04.2008 that all
such candidates be considered for being
sent on training as per Rules and its norms
by giving them preference, hence, this
manner the finding of the Committee is
perverse in nature in respect of Category
II, III and IV.

(c) There is no difference of
candidature of category I and candidates
of category II, III and IV but the
committee has adopted different creation
in respect of category I and II and III and
IV. Hence, the finding in respect of the
category II, III and IV is perverse.

(d) The Committee in its report
at para 2 page 21 has recorded the finding
to the effect that this Hon'ble Court vide
its judgment dated 29.04.2008 says that
such candidate who are under zone of
candidature of Special B.T.C. of 2004,
will be considered for appointment
2 All. Nirankar Pathak & Ors. Vs Sri Ashish Goel & Ors.
1361
according to Rule but this Hon'ble Court
has not said any word in such manner,
hence, the finding of the committee is
perverse in nature.

(e)
The
Committee
has
considered the procedure provided in the
Government Order dated 14.01.2004 and
20.02.2004 but these Government orders
are not applicable as the vacancy relates
to the year of 1995 and these Government
Orders were issued specially to provide
Special
B.T.C.
Course
to
46189
candidates
holding
B.Ed./L.T.
qualification. Hence, the finding of the
committee is perverse in nature.

(f) By the Government Order
dated 20.02.2004 the candidature of
C.P.Ed., D.P.Ed. and B.P.Ed. were only
included but the Committee has applied
the
said
Government
Order
dated
14.01.2004 and 20.02.2004 in the case of
category II, III and IV. Hence the finding
of the Committee is perverse in nature.

(g) The vacancy in respect of
the candidates of category II, III and IV
are relates to the year of 1995, hence the
decision of the Committee which is based
on the basis of the Government Order
dated 14.01.2004 and 20.02.2004 is
incorrect and perverse in nature.

(h) The committee has also
considered the appointments which were
made in district Basti, Gorakhpur and
Mahrajganj but the fact of the present
case are also absolutely different. Hence
considering the appointment of other
district and including the present case
goes the report perverse.

(i) The Committee while giving
his report dated 10.02.2017 has not given
any preference to the applicants and
examine the case of the applicants only on
the basis of the Government Order dated
14.01.2004 and 20.02.2004 that too are
not applicable in the present case. Hence,
the finding of the committee is absolutely
perverse and utter violation of the
judgment and order passed by the Hon'ble
Single Judge as well as by the Hon'ble
Division Bench.

(j) The committee in his report
has recorded the finding that if a decision
for sending the category II, III and IV
candidate for training is taken from the
State Government for special B.T.C.
course then the approval from N.C.T.E. is
required but doing so further, committee
has taken just opposite decision applying
the Government Order dated 14.01.2004
and 20.02.2004, hence the report of the
Committee is contradictory in nature itself
and made the report perverse.

(k) The committee has relied on
a Government Order dated 14.01.2004
and 20.02.2004 for considering the case
of the applicants for being sent for
training instead of considering the case of
the applicants under the Rule of 1981 in
utter violation of the judgment and order
passed by Hon'ble Single Judge as well as
by the Division Bench.

14. The learned counsel for the
petitioners has submitted that from the facts
stated hereinabove, it clear that the report of
the committee is perverse in nature and on
the basis of the such report, the opposite
party no.5 has issued letter on 08.03.2017
and thereafter has filed the compliance
report before this Hon'ble court, which is
liable to be rejected. Learned counsel
submits
that
from
the
facts
and
circumstances stated above, till today, the
judgment and order dated 17.09.2004,
29.04.2008 have not been complied with
and the action of the opposite parties is
deliberate,
intentional
and
therefore,
amounts to contempt of this Hon'ble Court
and they are liable to be punished under the
Contempt of Courts Act, 1971.
1362 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Per contra, Learned Advocate
General appearing on behalf of the State
has submitted that prior to enactment of
the U.P. Act No.34 of 1972, the U.P.
Municipal
Board
Educational
Establishment Service Rules, 1954 was
made under sub-section (2) of the Section
73 of the United Provinces Municipalities
Act, 1916; and under Part XI Rule 26 of
the Rules 1954, the training qualifications
for appointment as Basic Education
Teacher were prescribed as H.T.C.
(Hindustani Teachers' Certificate), J.T.C.
(Junior Teachers' Certificate), P.T.C.
(Primary
Teacher's
Certificate)
and
V.T.C. (Vernacular Teachers' Certificate).
It has also been submitted that after
constitution of Educational Code of Uttar
Pradesh, the appointment of untrained as
Basic Teacher was barred. Later on the
U.P. Basic Education Act, 1972 was
enacted
and
the
Board
of
Basic
Education, U.P. was constituted. Since
statutory rules were not made, as such, in
absence of statutory rules, the Board
issued a Circular dated 25.04.1973
determining the conditions/procedure and
qualifications for appointment as a
teacher in the Basic institutions under
Clause 4 of the said Circular, which were
C.T., J.T.C., B.T.C. and H.T.C. On
03.01.1981 the U.P. Basic Education
(Teachers) Service Rules, 1981 came into
force and the Circular of the Board dated
25.04.1973
automatically
became
ineffective.

16. The learned Advocate General
has submitted that an advertisement was
issued on 22.01.1991 by the Additional
Director (Basic Education), Faizabad
against about 1200 vacancies prescribing
training qualification of B.T.C., out of
which 315 posts were for District
Bahraich. Against the advertisement dated
22.01.1991,
258
applications
were
submitted by B.T.C. training holders and
53 by B.Ed./L.T. Training holders but no
appointment of any training holder (even
of B.T.C.) was made against the said
advertisement, as such, the petitioners
applications were not considered and after
the expiry of one year i.e. on 21.01.1992,
the said advertisement itself became
ineffective. A Bunch of seven writ
petitions against the advertisement dated
19/22.01.1992 was filed, which were
partly allowed by this Hon'ble Court on
23.12.1992 and the opposite parties were
directed that in case sufficient number of
B.T.C.
trained
candidates
are
not
available for appointment as Assistant
Teachers in the Basic Schools, the
petitioners
who
have
qualified
for
appointment on the basis of advertisement
dated
22.01.1991
be
appointed
as
Assistant Teachers in the Basic Schools
managed and run by the opposite parties,
within a period of three weeks.

17. The learned Advocate General has
further submitted that another advertisement
was made by the B.S.A, Bahraich on
19.12.1995 prescribing B.T.C. training as
eligibility qualification and against the said
advertisement
dated
19.12.1995,
416
applications of B.T.C. training holders and
325 applications of B.Ed./L.T. Training -
holders were received.

Judgment dated 23.12.1992 was
challenged in Special Appeal No.21 of 1993
filed by the Board, which was dismissed on
01.11.2001. Special Leave Petition of the
Board bearing no.3267 (CC) of 2002 (Basic
Shiksha Parishad vs. Triveni Prasad Pandey)
was got dismissed as withdrawn.

18.

In
pursuance
of
the
advertisement dated 19.12.1995, several
2 All. Nirankar Pathak & Ors. Vs Sri Ashish Goel & Ors.
1363
applications were wrongly made by the
B.Ed./L.T. Training holders and on the
event of their non-consideration, a Bunch
of 112 writ petitions was filed which were
decided by this Hon'ble Court on
30.11.2002 with direction to the opposite
parties to consider the case of petitioners
having B.Ed. or L.T. Qualifications for
appointment as Assistant Teacher in Basic
Schools, if sufficient number of B.T.C.
qualification holders are not available for
selection. It has been submitted that the
B.S.A. of Bahraich District made 263
appointments
in
compliance
to
the
judgment and order dated 23.11.1992 and
01.11.2001 and the State Government
vide G.O. dated 07.08.2003 declared the
said appointment as void ab-initio and in
pursuance
to
aforesaid
Government
Order, Director, Basic Education, U.P.
issued order dated 08.08.2003 and in
pursuance thereto, all the appointments
were cancelled by the then B.S.A.

19. The learned Advocate General
has further submitted that against the
Government Order dated 07.08.2003 as
well as the order dated 08.08.2003 passed
by the Director, Basic Education, 19 writ
petitions were filed by the candidates of
District Bahraich, which were commonly
decided vide order dated 17.09.2004.
Nineteen Special Appeals against the
judgment dated 17.09.2004 and several
Special Appeals against the judgment
dated 30.11.2002 were filed before this
Hon'ble Court and the same were decided
on 29.04.2008 with direction that all such
candidates be considered for being sent on
training as per rules and it norms by
giving them preference, but for that
matter, age will not come in their way and
their candidatures shall not be rejected
merely on the ground of being over age.
In another bunch of appeals, it has been
observed that in view of the judgment of
Apex Court in the case of Mohd. Sartaj
vs. State of U.P.; (2006) 2 SCC 313, there
hardly remains any controversy in this
regard that the candidates who are not
possessing B.T.C. training qualification
are not entitled for being appointed as
Assistant Teachers in Primary Schools
and the orders passed by the learned
Single Judge is liable to be set aside,
which is hereby set aside.

20. It has been submitted by the
learned Advocate General that Bunch of
writ petitions filed at Allahabad assailing
the decisions of the authorities dated
30.01.2008 and other dates was jointly
decided on 12.04.2013 considering both
the judgments of Hon'ble Lucknow Bench
dated 17.09.2004 and 29.04.2008. The
judgment dated 12.04.2013 was assailed
in nine special appeals (leading no.1031
of 2013 - Sanjay Kumar Chaubey vs.
State) and are pending at Allahabad but
no interim orders have been passed even
till date.

21. It has been submitted that in
compliance to order dated 10.02.2017
passed in the present contempt petition, a
three Member Committee (Director -
S.C.E.R.T., Director - Basic and Secretary
- Board) was constituted who submitted
its detailed report on 10.02.2017 and in
pursuance of the said report, the matter
was reconsidered and decided by the State
Government on 08.03.2017 that as per the
judgment dated 29.04.2008, 27 candidates
of first category who are appointed on
untrained grade be reinstated and as per
the direction of the Hon'ble Court, they
should also be paid their salary for the
period they have actually work and one
candidate Miss Geeta Sonkar who could
not be sent for Special B.T.C. training on
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
account of the non-availability of her
application in Special B.T.C. 2004 be sent
for training.

22. In support of his arguments,
learned Advocate General has relied on
the judgment of Hon'ble the Apex Court
in the case of Secretary, A.P. Public
Service
Commission
vs.
Y.
V.V.R.
Srinivasulu and others reported at 2003
(5) SCC 341 wherein in para 10 and 11
the following has been held :

"10. Both on account of the
scheme of selection and the various stages
disclosed as necessary to be undergone by
every candidate and the manner of actual
selection for the appointment in question,
the candidates were required to be
selected finally for appointment on the
basis of the ranks obtained by them in
terms of the inter se ranking based on the
merit of their respective performance.
There is no escape for anyone from this
ordeal and claim for any en bloc favoured
treatment merely because, anyone of them
happened
to
possess
an
additional
qualification
than
the
relevant
basic/general qualification essential for
even applying to the post. The word
"preference" in our view is capable of
different shades of meaning taking colour
from the context, purpose and object of its
use under the scheme of things envisaged.
Hence, it is to be construed not in an
isolated or detached manner, ascribing a
meaning of universal import, for all
contingencies capable of an invariable
application. The procedure for selection
in the case involve, a qualifying test, a
written examination and oral test or
interview and the final list of selection has
to be on the basis of the marks obtained in
them. The suitability and all round merit,
if had to be adjudged in that manner only
what justification could there be for
overriding all these merely because, a
particular candidate is in possession of an
additional qualification on the basis of
which, a preference has also been
envisaged. The rules do not provide for
separate classification of those candidates
or apply different norms of selection for
them. The 'preference' envisaged in the
rules, in our view, under the scheme of
things and contextually also cannot mean,
an absolute en bloc preference akin to
reservation or separate and distinct
method of selection for them alone. A
mere rule of preference meant to give
weightage to the additional qualification
cannot be enforced as a rule of
reservation
or
rule
of
complete
precedence. Such a construction would
not only undermine the scheme of
selection
envisaged
through
Public
Service Commission, on the basis of merit
performance but also would work great
hardship and injustice to those who
possess
the
required
minimum
educational qualification with which they
are entitled to compete with those
possessing additional qualification too,
and demonstrate their superiority, merit
wise and their suitability for the post. It is
not to be viewed as a preferential right
conferred even for taking up their claims
for consideration. On the other hand, the
preference envisaged has to be given only
when the claims of all candidates who are
eligible are taken for consideration and
when anyone or more of them are found
equally
positioned,
by
using
the
additional qualification as a tilting factor,
in their favour vis-a-vis others in the
matter of actual selection.

11. Whenever, a selection is to
be
made
on
the
basis
of
merit
performance involving competition, and
possession of any additional qualification
2 All. Nirankar Pathak & Ors. Vs Sri Ashish Goel & Ors.
1365
or factor is also envisaged to accord
preference, it cannot be for the purpose of
putting them as a whole lot ahead of
others, dehors their intrinsic worth or
proven inter se merit and suitability, duly
assessed by the competent authority.
Preference, in the context of all such
competitive scheme of selection would
only mean that other things being
qualitatively and quantitatively equal,
those with the additional qualification
have to be preferred. There is no question
of eliminating all others preventing
thereby even an effective and comparative
consideration on merits, by according en
bloc precedence in favour of those in
possession of additional qualification
irrespective of the respective merits and
demerits
of
all
candidates
to
be
considered. If it is to be viewed they way
the High Court and Tribunal have chosen
to, it would amount to first exhausting in
the matter of selection all those, dehors
their inter se merit performance, only
those
in
possession
of
additional
qualification and take only thereafter
separately those with ordinary degree and
who does not possess the additional
qualification. Assuming for consideration
without even accepting the same to be
right or correct view to be taken, at least
among the class or category of those
possessing the additional qualification,
inter se merit performance should be the
decisive factor for actual selection for
appointment and relief could not have
been granted to respondents for the mere
asking
only
on
the
basis
of
the
interpretation of the provision to some
one who came to court, ignoring the fact
that those before the court at any rate in
spite of the view taken do not come up to
the level of selection considered in the
context of numerous others with higher
ranks of merit performance, in addition to
they being also in possession of the
additional qualification, as those before
the court. That apart, the old rule relating
to the post of ACTO, which has become
obsolete having been superseded, or even
the advertisement if it has stated on the
basis of the obslete rule, that preference
will be given first to candidates who
possess a degree in Commerce and
degree in Law, secondly to those who
possess a degree in Commerce and thirdly
to those who possess a degree in Law,
cannot either support the claim of the
respondents No.1 to 3 nor in any manner
lend credence to the interpretation placed
by the High Court and the Tribunal. The
word 'first' has to be construed in the
context of even giving preference only in
the order and manner indicated therein,
inter se among more than one holding
such different class of degrees in addition
and not to be interpreted vis-a-vis others
who do not possess such additional
qualification, to completely exclude them,
en bloc."

23. The learned Advocate General
has lastly submitted that in compliance to
the judgments dated 17.09.2004 and
29.04.2008 and also in compliance to
order of Hon'ble Contempt Court dated
23.12.2006, the matter in dispute has been
reconsidered and finally decided by the
State Government vide order dated
08.03.2017, as such, the orders have been
complied with and nothing is left in the
present contempt petition and the present
contempt
petition
is
liable
to
be
dismissed.