# Rohit Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 1132
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-29
- **Case number:** Writ-A No. 988 of 2021
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohit-kumar-ors-v-state-of-u-p-ors-47641
- **Pages:** 10

## Headnote

A. Service Law - Constitution of India, 1950Article 226-Challenge to-Government Order
of
Assistant
Teacher
2019-petitioners
appeared in ATRE-2019 to improve their
percentage marks to get their preferred
choice of district-Under the Rules, govering
Assistant Teachers, there is a provision for
securing inter-district transfer-petitioners
had been deprived NOC to participate in the
counselling for appointment and placementGO discriminates against the candidates
employed in other departments -GO to that
extent has exceeded the power, authority
and
jurisdiction
conferred
upon
the
Government under Act, 1972 and the Rules,

## Text

1132 INDIAN LAW REPORTS ALLAHABAD SERIES
or her previous experience, as an Advocate
with 7 years practice, cannot apply and
compete for appointment to any vacancy in
the post of District Judge; his or her chance
to occupy the post would be through
promotion in accordance with the Rules
framed under Article 233 and Proviso to
Article 309 of the Constitution of India.

14. No relief can be given to the
petitioners. The writ petition fails and is,
accordingly, dismissed.

15.

The
interim
order
dated
20.12.2018 stands discharged.
----------
(2022)01ILR A1132
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 988 of 2021
Alongwith
Writ-A Nos. 4462 of 2020, 4515 of 2020, 4786
of 2020, 5199 of 2020, 5388 of 2020, 5807 of
2020, 5865 of 2020, 6145 of 2020, 8501 of
2020, 10636 of 2020, 14110 of 2020, 14279 of
2020, 2654 of 2021, 7656 of 2021, 8412 of
2021, 10222 of 2021

Rohit Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Man Bahadur Singh, H.N. Singh Sr. Advocate

Counsel for the Respondents:
C.S.C., Arun Kumar, Ashok Kumar, Raghvendra
Pratap Singh, Ram Prakash Shukla, Sanjay
Chaturvedi, Sanjay Kumar Srivastava, Satish
Chandra Yadav, Vikram Bahadur Singh, Yatindra

A. Service Law - Constitution of India, 1950Article 226-Challenge to-Government Order
of
Assistant
Teacher
2019-petitioners
appeared in ATRE-2019 to improve their
percentage marks to get their preferred
choice of district-Under the Rules, govering
Assistant Teachers, there is a provision for
securing inter-district transfer-petitioners
had been deprived NOC to participate in the
counselling for appointment and placementGO discriminates against the candidates
employed in other departments -GO to that
extent has exceeded the power, authority
and
jurisdiction
conferred
upon
the
Government under Act, 1972 and the Rules,
1981. Para 5(1) of the Government Order, is
an arbitrary exercise of power having no
nexus with the object or clarification it
seeks to remedy.(Para 1 to 22)

The writ petition is allowed. (E-6)
(Delivered by Hon'ble Suneet Kumar, J.)

1. The batch of petitions involve
similar controversy, therefore, on request of
the learned counsels for the parties, the writ
petitions are being decided by a common
judgment and order.

2. Heard Sri H.N. Singh, learned
Senior Advocate, assisted by Sri Man
Bahadur Singh and Sri Agnihotri Kumar
Tripathi, learned counsels appearing for the
petitioners. In all other matters, learned
counsels for the petitioners have adopted
the arguments advanced by learned Senior
Advocate. Smt. Archana Singh, learned
Addl.
Chief
Standing
Counsel
has
advanced arguments on behalf of State; Sri
Yatindra, Sri Vikram Bahadur Singh, Sri
Arun Kumar and Sri Sanjy Kumar,
Advocates, have put in appearance on
behalf of Uttar Pradesh Board of Basic
Education
and
have
advanced
their
submissions.

3. Facts of writ petition No.-988/2021
is being referred to for the sake of
1 All. Rohit Kumar & Ors. Vs. State of U.P. & Ors.
1133
convenience. The facts, interse, parties is
not in dispute.

4. Petitioners, herein, are working in
Junior Basic Schools in various districts of
Uttar Pradesh, run and managed by the
Uttar Pradesh Board of Basic Education1.
Petitioners came to be selected and
appointed pursuant to Assistant Teacher
Recruitment Examination-2018.

5. By the instant petitions, petitioners
have raised challenge to the legality and
validity of the Government Order dated 4
December 2020, insofar Para 5(1), therein,
denies issuance of No-Objection Certificate2
to the working teachers. A further direction
has been sought directing the respondents to
issue NOC to the petitioners and to appoint
them in the district of their choice.

6. The facts, giving rise to the instant
petition, briefly stated, is that pursuant to the
Government Order dated 01 December
2019, applications were invited by the Board
for
Assistant
Teacher
Recruitment
Examination-20193.
Petitioners,
being
eligible and there being no prohibition/bar in
the Government Order, applied to enable
them to improve their merit and procure
placement in a district of their choice. It is
pointed out that the post of Assistant Teacher
is a district cadre. As per Government Order
dated 07 January 2019, the candidates
belonging to General or open category were
to
obtain
65%
marks,
whereas,
the
candidates
under
reserved
categories
(scheduled caste, scheduled tribes and other
backward classes) had to secure 60% marks.
ATRE-2019 result was declared on 12 May
2020. As against 69000 vacancies 1,46,060
candidates were successful in securing
minimum pass percentage marks.

7. The relevant extract of
Government Order 7 January 2019 and
Notification 16 May 2020 indicating the
number of vacancies, the pass percentage
marks and the number of qualified
candidates is extracted:

lsok esa]
1funs'kd
2 lfpo

jkT; 'kSf{kd vuala/kku ,oa izf'k{k.k ifj"kn]
ijh{kk fu;ked izkf/kdkjh]
 mRrj
izns'k]
y[kuÅA
m0iz0 iz;kxjktA
 csfld f'k{kk vuqHkkx & 4 y[kuÅ
fnukad% 07 tuojh] 2019

fo"k;%& mRrj izns'k csfld f'k{kk ifj"kn }kjk lapkfyr
ifj"knh; izkFkfed fo|ky;ksa gsrq ^^lgk;d v/;kid
HkrhZ ijh{kk 2019** esa U;wure mRrh.kkZad fu/kkZfjr fd;s
tkus ds lEcU/k esaA

egksn;]

mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn ds
i= la[;k& cs0f'k0i0&16426&27@2018&19 fnukad
05 tuojh] 2019 dk lanHkZ xzg.k djsa] ftlsd }kjk
^^lgk;d v/;kid HkrhZ ijh{kk 2019** esa U;wure
^^mRrh.kZad** fu/kkZfjr fd;s tkus dk vuqjks/k fd;k x;k
gSA

2&bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS
fd'''kklu }kjk lE;d~ fopkjksijkUr ^^lgk;d
v/;kid HkrhZ ijh{kk 2019** ds vk;kstu gsrq fuxZr
'kklukns'k la[;k& 2056@68&4&2018 fnukad 01-122018 ds Øe esa ijh{kk ifj.kke gsrq fuEuor~ U;wure
mRrh.kkZad fu/kkZfjr fd;k tkrk gSA ;g U;wure
mRrh.kkZad ek= ^^lgk;d v/;kid HkrhZ ijh{kk 2019**
ds fy;s gh gksxk%&

1⁄4d1⁄2 lkekU; oxZ ds vH;fFkZ;ksa dks iw.kkZad 150 esa
ls 97 vad vFkkZr~ 65 izfr'kr ,oa vf/kd vad izkIr
djus okys vH;fFkZ;ksa dks ^^lgk;d v/;kid HkrhZ
ijh{kk] 2019** gsrq mRrh.kZ ekuk tk;sxkA

1⁄4[k1⁄2 vU; leLr vkjf{kr oxZ ds vH;fFkZ;ksa dks
iw.kkZad 150 esa ls 90 vad vFkkZr~ 60 izfr'kr ,oa
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
vf/kd vad izkIr djus okys vH;fFkZ;ksa dks ^^lgk;d
v/;kid HkrhZ ijh{kk] 2019** gsrq mRrh.kZ ekuk tk;sxkA

1⁄4x1⁄2 mijksDr ^d* ,oa ^[k* ds vk/kkj ij mRrh.kZ
vH;FkhZ 69]000 fjfDr;ksa ds fo:) foKkfir inksa ij
vkosnu djus ds vf/kdkjh gksaxs ,oa mijksDr U;wure
mRrh.kkZad ds vk/kkj ij lQy gksus ek= ij gh fdlh
vH;FkhZ dks fu;qfDr gsrq vf/kdkj ugha gksxk D;ksafd ;g
ijh{kk fu;qfDr ds fy;s dsoy ik=rk ekun.Mks esas ls
,d gSA

1⁄4?k1⁄2 fu/kkZfjr foKkfir inksa dh la[;k 1⁄4690001⁄2
ls vf/kd vH;FkhZ mRrh.kZ gksus dh fLFkfr esa lQy gksus
okys dqy vH;fFkZ;ksa esa ls vfUre esfjV ds vk/kkj ij
foKkfir inksa ds lkis{k mRrj izns'k csfld f'k{kk
1⁄4v/;kid1⁄2 lsok fu;ekoyh] 1981 ds chlosa la'kks/ku ds
ifjf'k"V &1 ,oa fu/kkZfjr vkj{k.k ds vuqlkj vgZ
vH;fFkZ;ksa dk p;u fd;k tk;sxkA

'ks"k vH;FkhZ p;u izfdz;k ls Lor% ckgj gks
tk;saxs rFkk bl ^^lgk;d v/;kid HkrhZ ijh{kk] 2019**
ds vk/kkj ij p;u gsrq dksbZ vf/kdkj ugha gksxkA

Hkonh;

x x x x

dk;kZy; lfpo
mRrj izns'k csfld f'k{kk ifj"kn] iz;kxjkt

i=kad
cs0f'k0i0@778@2020&21
fnukad% 16-05-2020
foKfIr

'kklukns'k la[;k&344@68&5&2020 fnukad 1305-2020 ds vuqØe esa m0iz0 csfld f'k{kk ifj"kn }kjk
lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa 69]000
lgk;d v/;kidksa dh HkrhZ ds fy, vk;ksftr lgk;d
v/;kid HkrhZ ijh{kk&2019 esa mRrh.kZ 1]46]060
vH;fFkZ;ksa esa ls tuinokj fu/kkZfjr inksa dh la[;k 1⁄4tks
?kV c<+ ldrh gS1⁄2 ij p;u@fu;qfDr gwrq m0iz0
csfld f'k{kk v/;kid lsok fu;ekoyh&1981 1⁄4v|ru
la'kksf/kr1⁄2
esa
mfYyf[kr
izkfo/kkuksa
rFkk
okafNr'''kSf{kd@izf'k{k.k vgZrk/kkjh vH;fFkZ;ksa ls
tuin vkoaVu gsrq vkWuykbu vkosnu i= vkeaf=r
fd;s tkrs gSaA

8. Consequent, thereof, shortlisted
candidates were called upon by the Board
to
make
on-line
applications
for
counselling and appointment pursuant to
the Government Order dated 13 May 2020.
The counselling was to be held by the
Selection Committee in respective districts.
The successful candidates already working
in
Government
department,
semiGovernment
department,
Board
were
required to submit NOC of their employer.
Accordingly, some of the petitioners
obtained
NOC
from
their
respective
District Basic Education Officers, which
subsequently came to be cancelled. The
NOC was declined to the other successful
Assistant
Teachers
pursuant
to
the
Government Order dated 4 December
2020. The impugned para 5(1) is extracted:

isz"kd]
loksZPp izkFkfedrk

js.kqdk
dqekj]
la[;k& 1656@68&5&2020

vij eq[; lfpo]

mRrj izns'k 'kkluA

lsok esa]

1-
leLr
ftykf/kdkjh]
2- egkfuns'kd]

mRrj
izns'kA
Ldwyf'k{kk] m0iz0 y[kuÅA

3-
funs'kd]
4- leLr csfld f'k{kk vf/kdkjh]

csfld
f'k{kk]m0iz0
y[kuÅA
mRrj izns'kA

csfld
f'k{kk
vuqHkkx&5
y[kuÅ% fnukad% 04 fnlEcj] 2020

fo"k;& ifj"knh; izkFkfed fo|ky;ksa esa 69]000
fjDr inksa ds lkis{k vH;fFkZ;ksa ds p;u@fu;qfDr
izfdz;k esa vfHkysa[kksa esa folaxfr ds lEcU/k esa
Li"Vhdj.k (Clarification)
a

egksn;]

mi;ZqDr fo"k;d egkfuns'kd] Ldwy f'k{kk] m0iz0
ds
i=
la[;k&egkfu0Ldw0f'k0@6030@2020&21]
fnukad 11-11-2020 dk d`i;k lUnHkZ xzg.k djus dk
d"V djsa] ftlds }kjk ifj"knh; izkFkfed fo|ky;ksa esa
69]000 fjDr inksa dks Hkjs tkus gsrq csfld f'k{kk
vf/kdkfj;ksa }kjk izkIr djk;h x;h folaxfr;ksa ds
lEcU/k esa vxzsrj dk;Zokgh gsrq funsZ'k miyC/k djkus
dh vis{kk dh x;h gSA mDr ds lEcU/k esa 'kklu Lrj
1 All. Rohit Kumar & Ors. Vs. State of U.P. & Ors.
1135
ij fnukad 18-11-2020 dks foHkkxh; vf/kdkfj;ksa ds
lkFk lEiUu cSBd ds dze es ifjyf{kr folaxfr;ksa ds
lEcU/k esa fuEukuqlkj dk;Zokgh fd;s tkus dk fu.kZ;
fy;k x;k gS%&a

vH;FkhZ ds vkosnu ,oa izLrqr vadi= ,oa izek.k
i= esa ekrk&firk dk uke vyx gS] rks Lohdkj ugha
fd;k tk;sxk] ijUrq ekrk ds LFkku ij firk dk uke
vkSj firk ds LFkku ij ekrk dk uke vafdr gS rks
vU; oS/kkfud vfHkys[kksa ls ijh{k.kksijkUr ;g iq"V gksrk
gS fd vH;FkhZ ds ekrk ,oa firk dk okLrfod uke ogh
gS rks bl fyfidh; =qfV ds fy, mldk p;u fujLr
ugha fd;k tk;sxkA

fcUnq
la[;k&5%
vukifRr
izek.k
i=
1⁄4,u0vks0lh01⁄2 ds dkj.k &

mi;qZDr izdkj ds folaxfr;ksa ds lEcU/k esa
fuEukuqlkj dk;Zokgh fd;s tkus dk fu.kZ; fy;k x;k
gS%&

1⁄411⁄2 vH;FkhZ tks f'k{kk foHkkx esa iwoZ ls lgk;d
v/;kid in Ikj dk;Zjr gSa mlh foHkkx esa led{k in
ds fy, dk;ZeqDr ugha fd;k tk;sxk D;ksafd f'k{kdksa
dks vUrtZuinh; LFkkukUrj.k dh lqfo/kk vuqeU; gSA

1⁄421⁄2 ,sls vH;FkhZ tks vU; foHkkx esa dk;Zjr gSa
mUgsa fu;qfDr&i= iznku dj fn;k tk;s rFkk vius ewy
foHkkx ls dk;ZeqDr gksdj dk;Z Hkkj xzg.k djus gsrq
rhu ekg dk le; fn;k tk;sxkA

d`i;k mijksDr fn'kk&funsZ'kksa ds vuqlkj vxzsRrj
dk;Zokgh lqfuf'pr djkus dk d"V djsaA

9. The grievance of the petitioners is
that they were working as Assistant Teacher
in different districts of Uttar Pradesh and
had appeared in ATRE-2019 to improve
their percentage marks so as to enable them
to get their preferred choice of district. It is
urged that by the impugned Government
Order, petitioners, have been deprived
NOC to participate in the counselling for
appointment and placement, for the reason
that under the Rules governing the
Assistant Teachers, there is a provision for
securing inter-district transfer. In other
words, it is sought to be submitted that
para-5(1)
of
the
Government
Order
discriminates against the petitioners, vis-avis, other candidates employed/working in
other departments of the Government. It is
urged that the Government order to that
extent is violative of Article 14 and 16 of
the Constitution of India.

10. Respondents have taken a stand
that since petitioners are already an
Assistant Teacher working in various
Junior Basic Schools, they have a right to
apply and seek transfer inter district under
the Rules. It is urged that they have been
rightly not been issued NOC to participate
in the counselling or join at the district
upon selection. It is further submitted that
in the event of NOC being issued to the
petitioners, who are working Assistant
Teachers, that many post would remain
vacant and would not sub-serve the purpose
of the Board recruiting teachers. It is
further argued that there is no provision of
waiting-list, therefore, vacancies falling
vacant as a consequence of petitioners
being appointed and allotted district, other
than the district of their choice, would be
against the object of recruiting Assistant
Teachers. The Government Order is fair,
just and non discriminatory.

11. Rival submissions fall for
consideration.

12. The Board, duly constituted, is
governed under the provisions of U.P.
Basic Education Act, 19724. Section 13 of
the Act, 1972, provides for control of the
State Government and envisages that the
Board shall carry out such directions, as
may be issued from time to time by the
State
Government,
for
the
efficient
administration of the Act. The appointment
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
and selection of Assistant Teacher is
governed
by
U.P.
Basic
Education
(Teachers) Service Rules, 19815. This fact
is reflected from the Guidelines dated 1
December 2018, issued by the Government
for ARTE 2019. The relevant portion of the
Government Order and guidelines is
extracted:

lsok esa]

funs'kd]
lfpo]

jkT; 'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn]
ijh{kk fu;ked izkf/kdkjh]
m0iz0]y[kuÅA
m0iz0]bykgkcknA

csfld
f'k{kk
vuqHkkx
&
4
y[kuÅ%
fnukad% 01 fnlEcj] 2018

fo"k;%& ^^lgk;d v/;kid HkrhZ ijh{kk 2019** ds
vk;kstu gsrq xkbM ykbUl@ fn'kk funsZ'kA

egksn;]

mi;qZDr
fo"k;d
lfpo]
ijh{kk
fu;ked
izkf/kdkjh
ds
i=
la[;k&xksi0@
l0v0Hk0i0&19@ 21556&59@2018&19 fnukad
01 fnlEcj] 2018 dk lanHkZ xzg.k djsa] ftlds
}kjk ^^lgk;d v/;kid HkrhZ ijh{kk 2019** ds
laca/k esa ekxZn'khZ fl)kUr] xkbM ykbUl] izfØ;k
vkSj le; lkfj.kh ds laca/k esa 'kklukns'k fuxZr
fd;s tkus dk vuqjks/k fd;k x;k gSA

2& bl lEcU/k esa eq>s ;g dgus dk
funsZ'k gqvk gS fd 'kklu }kjk lE;d~
fopkjksijkUr m0iz0 csfld f'k{kk ifj"kn }kjk
lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa ^^lgk;d
v/;kid HkrhZ ijh{kk 2019** vk;ksftr fd;s tkus
gsrq ekxZn'khZ fl)Ur] xkbM ykbUl] izfØ;k vkSj
le; lkfj.kh layXu dj fuxZr fd;k tkrk gSA

3& ^^lgk;d v/;kid HkrhZ ijh{kk
2019** m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr
ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid
ds dqy 69]000 fjDr inksa ij HkrhZ ds fy;s
vk;ksftr dh tk;sxhA ;g ijh{kk ek= blh HkrhZ ds
fy;s gh ekU; gksxhA

layXud& ;FkksifjA Hkonh;]

Guidelines:

csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh;
izkFkfed fo|ky;ksa esa ^^lgk;d v/;kid HkrhZ ijh{kk
2019 dk vk;kstu djus ds fy, ekxZn'khZ fl)kUr]
xkbM ykbUl] izfØ;k vkSj le; lkfj.kh

1⁄4[k1⁄2 lgk;d v/;kid HkrhZ ijh{kk m0iz0 csfld
f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed
fo|ky;ksa esa lgk;d v/;kid ds inksa ij HkrhZ gsrq
69]000 inksa ds lkis{k vk;ksftr dh tk;sxhA fo'ks"k
ifjfLFkfr;ksa esa inksa dh la[;k ?kV@c<+ ldrh gSA ;g
ijh{kk ek= blh HkrhZ gsrq ekU; gksxhA

2& ijh{kk laLFkk

'kklukns'k la0& 4029@15&11&2017 fnukad
24-11-2017 }kjk lgk;d v/;kid HkrhZ ijh{kk ds
vk;kstu gsrq ijh{kk laLFkk ds :i esa jkT; 'kSf{kd
vuqla/kku ,oa izf'k{k.k ifj"kn] m0iz0 y[kuÅ dh
bdkbZ ^^lfpo] ijh{kk fu;ked izkf/kdkjh] ,yuxat]
m0iz0 iz;kxjkt** dks ukfer fd;k x;k gSA

3----------------------------------------------

4& vkosnu ds fy, U;wure vgZrk] vk;q ,oa
fuokl &

1- mRrj izns'k csfld f'k{kk 1⁄4v/;kid1⁄2 lsok
1⁄4ckblokWa la'kks/ku1⁄2 fu;ekoyh 2018 ds fu;e& 08 esa
mfYyf[kr 'kSf{kd] izf'k{k.k mRrh.kZ Hkkjr ljdkj
vFkok jkT; ljdkj }kjk vk;ksftr izkFkfed Lrj
vkosnu 'kqYd ls izkIr /kujkf'k dk O;; ijh{kk lEcU/kh
dk;ksZa ds fy, foRr foHkkx }kjk tkjh ferO;;rk ds
fl)kUrksa ds vuqlkj lfpo] ijh{kk fu;ked izkf/kdkjh]
m0iz0 iz;kxjkt }kjk fd;k tk;sxkA

13. In view to uniformly raise the
standard
of
teachers
and
teaching,
Parliament enacted the Right of Children to
Free and Compulsory Education Act,
20096. Central Government, in exercise of
powers conferred under Section 23 of RTE
Act, 2009, notified the National Council for
Teachers Education7 as the Academic
Authority. The qualification prescribed by
NCTE for the appointment of teachers was
uniformly made applicable throughout the
country so as maintain a uniform standard
of teaching in different categories of
schools defined under the RTE Act, 2009.
The
State
Government,
accordingly,
amended the qualifications in the respective
Rules
governing
the
appointment
of
teachers pursuant to the qualifications
1 All. Rohit Kumar & Ors. Vs. State of U.P. & Ors.
1137
notified by NCTE, which was not only
binding but had an overriding effect. The
NCTE on 23 August 2020, notified the
qualifications for teachers in schools
providing elementary education from Class
1 to 8. The notification subsequently came
to be modified. Pursuant thereof, the State
Government incorporated by way of
amendment the qualifications under the
Rules, 1981. The 23rd amendment in
Rules, 1981, notified on 24 January 2019,
was made applicable from a retrospective
date i.e. 1 January 2018. The amended
Rules, 1981, is relevant for the purpose of
the instant controversy.

14. Rule 14 of Rules, 1981, provides
the procedure of selection/determination of
vacancies.
The
Assistant
Teachers
Recruitment Examination is to be conducted
for the determined vacancies and the result is
to be communicated to the Secretary of the
Board,
who
thereafter,
shall
invite
applications from successful candidates and
recommend the names for counselling as per
the option exercised by the candidates to the
respective District Basic Education Officer
for
appointment.
The
District
Basic
Education Officer is the appointing authority
of the Assistant Teacher of their respective
district. Rules 16, 17 and 19 of Rules, 1981,
provide
the
constitution
of
Selection
Committee; verification of academic record
and eligibility of the candidates. Upon
verification and determining the quality point
marks, the Selection Committee shall forward
the names of the candidates to the appointing
authority for issuance of appointment order.
The relevant provisions of Rules, 1981, is
extracted:

2- (b) "Appointing Authority" in
relation to teachers referred to in Rule 3
means the District Basic Education Officer;

(h) "Junior Basic School" means a
basic school where instructions from Class
I to V are imparted;

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

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

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

14. Procedure of Selection - (1)
Determination of vacancies - In respect of
appointment, by direct recruitment to the
post of Assistant Master of Junior Basic
Schools under clause (a) of Rule 5, the
appointing authority shall determine the
number of vacancies as also the number
vacancies to be reserved for candidates
belonging to Scheduled Castes, Scheduled
Tribes,
Backward
Classes
and
other
categories under Rule 9 and forward to the
Secretary,
Uttar
Pradesh
Basic
Education Board, Prayagraj. Information
of compiled vacancies as per reservation
shall be provided by the Secretary, Uttar
Pradesh
Basic
Education
Board,
Prayagraj to the Examination Body. For
the notified vacancies an Assistant
teacher Recruitment Examination shall
be conducted by the Examination Body
authorised as such by the Government and
result, according to reservation, shall be
provided to Secretary, Uttar Pradesh Basic
Education Board, Prayagraj.

Thereafter, an advertisement for
recruitment will be published in at least
two leading daily news papers having
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
adequate circulation in the State by the
Secretary, Uttar Pradesh Basic Education
Board,
Prayagraj
inviting
online
applications from candidates possessing
prescribed
educational
and
trainings
qualification and passed teacher eligibility
test, conducted by the Government or by
the Government of India and passed
Assistant
Teacher
Recruitment
Examination
conducted
by
the
Government, in which cadre wise district
option will be filled by the candidates.

(2).............................

(3) The name of candidates in the list
prepared under sub-rule (2) in accordance
with clause (a) of sub-rule (1) of Rule 14
shall then be arranged in such manner that
the candidate shall be arranged in
accordance with the quality points and
weightage as specified in the Appendix I:

Thereafter, cadre wise district will
be allotted to the candidates as per their
quality points and options by the
Secretary, Uttar Pradesh Basic Education
Board, Prayagraj and list will be sent to the
appointing authority.

(4) No person shall be eligible for
appointment unless his or her name is
included in the list prepared under sub-rule
(3).

(5) The list prepared under sub-rule
(2) and received in accordance with subrule (3) of Rule 14 from the Secretary,
Uttar Pradesh Basic Education Board,
Prayagraj, shall be forwarded by the
appointing authority to the Selection
Committee."

"17. Procedure for direct recruitment -
The Selection Committee shall verify the
academic
records
and
eligibility
of
candidates on the basis of the list referred
to in clause (a) of sub-rule (3) of Rule 14 or
sub-rule (2) of Rule 15. After verification
and
determining
the
eligibility
of
candidates the Selection Committee shall
forward the name of the candidates to the
appointing authority."

"19. Substantive Appointment - The
appointing
authority
shall
make
appointment to any post referred to in
Rule 5 by taking the names of the
candidates in the order in which they
stand in the list prepared under Rule 17
or 18, as the case may be. The character
verification
will
be
done
by
every
appointed candidates compulsorily."

15. It is clear from the reading of Rule
14 and 17 that option has to be exercised by
the candidate district wise, the names of the
candidate has to be arranged in accordance
with the quality point marks secured by the
candidate. Thereafter, cadre wise district
will be allotted to the candidates as per
quality
points
and
options.
The
appointment would, thereafter, be made by
the appointing authority in the order in
which the names of the candidate stands in
the
list
prepared
by
the
Selection
Committee. In other words, the Rules,
1981, mandatorily provides allocation of
district to the selected candidate on quality
points based on option of the candidate.

16. It is urged that in view of Rules 14
to 19, the State Government has no role and
as per the Rules, the process of selection
has been conferred upon the Board and the
Selection Committee. In the backdrop of
the Rules, it is submitted that the State
Government prohibiting the issuance of
NOC to the petitioners and allowing NOC
to be issued to candidates working in other
departments
is
discriminatory.
It
is
submitted that the cadre of Assistant
Teacher is district wise and inter-district
transfer is an exception and not an
incidence of service governed by U.P.
Basic
Education
(Teachers)
(Posting)
Rules, 2008. The Rules, 2008, prohibits a
1 All. Rohit Kumar & Ors. Vs. State of U.P. & Ors.
1139
teacher from seeking transfer unless he/she
has put in five/three years of service
respectively in the district. In other words,
it is sought to be urged that a male teacher
can seek transfer after putting in five years
of service and a female teacher after putting
in three years of service. The embargo of
5/3 years would, however, not apply in the
case of those teachers who seek transfer in
exceptional ''exigencies'. The option for
transfer can be exercised by a teacher only
once. In short, it is urged that petitioners
have a right to improve their percentage
marks so as to enable them to seek
placement in a district of their choice which
is part of the selection process. It is urged
that
objection
being
raised
by
the
respondents is without any basis and
unreasonable.

17. It is further submitted that issuing
NOC to the petitioners would have no
bearing on the vacancies being sought to be
filled by ATRE-2019. It is admitted by the
respondents
that
as
against
69000
vacancies,
1,46,000
candidates
have
qualified on having obtained minimum
percentage marks. Board is bound to
recommend 69,000 candidates, including
the
petitioners
who
have
qualified.
Placement of the petitioners in the district
of their choice, on their percentage marks,
would have no bearing on the vacancies to
be filled up. That many number of
candidates (1,46,000 - 69,000) i.e. 77,000
over and above the vacancies is available
with the Board and would have to go
without appointment. It is, therefore, urged
that the plea of wait list and of vacancies
being not filled up, on petitioners being
adjusted/appointed in the districts of their
choice would have no bearing on the
vacancies. The stand of the respondents is
without any foundation or basis.

18. It is not in dispute that the
petitioners have been selected and cleared
for
appointment
in
various
districts
pursuant to ARTE 2019, and at that stage
they have been prohibited issuance of NOC
by the impugned Government Order. The
plea of the Board that issuing NOC to the
petitioners would disturb the student
teacher ratio in the institutions, where they
are working is misconceived. As noted
herein above, 77,000 candidates exceed
69,000 vacancies, issuance of NOC to the
petitioners would have no bearing on the
student teacher ratio, as all the 69,000
teachers selected would be given placement
in the various institutions of the district of
their choice, including the petitioners. The
placement of the petitioners in the district
of their choice, based on their quality point
marks, would have no bearing either on the
number of vacancies or the number of
teachers to be recommended against 69,000
vacancies. For instance, by way of
illustration, 100 working Assistant Teachers
are given posting say in 20 districts, upon
selection. The 100 teachers are part of the
selected 69,000 teachers against that many
vacancy. Their placement would impact the
number of vacancy district wise i.e. the
district from where they are placed would
witness a fall in the vacancy. Like wise
there will be an increase in the vacancy of
Assistant Teacher of that many number of
teachers adjusted. But the adjustments
would leave no impact on the overall
vacancies. The selection and placement of
the petitioners would neither increase the
number of selected candidates nor reduce
the number of vacancies to that extend. The
plea of the State and Board that the teacher
student ratio would be disturbed on the
placement of petitioners, and/or the Board
would have to recommend candidates over
and above 69,000 vacancy (wait list) is
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
misconceived, imaginary and irrational.
The argument taken on face value is absurd
and does not subscribe to reason.

19. On specific query, learned
counsels appearing for the State and the
Board admit that there is no embargo in any
of the Government Orders pertaining to
ARTE 2019 prohibiting the Assistant
Teachers already working in Basic schools
from applying for the post of Assistant
Teacher. It is further not being disputed by
the respondents that improvement of
percentage marks by the petitioners would
enable them to make a choice of district. It
is not being disputed that the cadre of
Assistant Teachers is district cadre and
transfer is not a general condition of
service. It is further not being disputed that
the allotment/placement to a district of a
selected candidate is a part of the selection
process
of
Assistant
Teacher,
solely
dependent on the quality points secured by
a candidate. The Rules, 2008, does not
confer, as a matter of right, upon the
Assistant Teacher to seek inter district
transfer. The teacher can apply for transfer
after putting in a requisite member of years
of service as provided in the rules. The
Board would consider the application based
on a number of factors, viz, availability of
teachers, teacher-student ratio, vacancy etc.
In other words, the inter-district transfer
cannot be claimed by a teacher as of right.

20. As against transfer, an Assistant
Teacher can claim placement to a district of
choice based on the percentage marks
obtained in the selection process and the
option exercised by the candidate. The
Board or the Selection Committee have not
been conferred any power under the Rules,
1981, for placement of a selected candidate
to a district, but based on the option of the
candidate and the quality point marks
obtained by the selected candidate in the
recruitment examination.

21. Government order dated 4
December 2020, is clarificatory in view of
the anomalies noted, therein. The impugned
para 5(1) of the said Government Order
seeks to rectify an anomaly and in doing so
the
Government
prohibits
Assistant
Teachers who are already appointed and
working from issuance of NOC from their
employer, as against, candidates working in
other Government departments. On plain
reading, the Government has not clarified,
as to how, the selected candidates working
as Assistant Teachers are to be adjusted in
the district of their choice, but on the
contrary the Government Order is in the
nature of an injunction restraining the
Board and the appointing authority i.e. the
District Basic Education Officer from
issuing NOC. In other words, the selection
and placement, both part of the same
recruitment, has been set at naught, insofar,
the petitioners are concerned. In my
opinion the Government Order to that
extend has exceeded the power, authority
and
jurisdiction
conferred
upon
the
Government under Act, 1972 and the
Rules, 1981. Para 5(1) of the Government
Order 4 December 2020, is an arbitrary
exercise of power having no nexus with the
object or clarification it seeks to remedy.
Executive action to escape wrath of Art. 14
has
to
be
fair,
reasonable,
nondiscriminatory, transparent, non-capricious,
unbiased, without favouritism, in pursuit of
appointment and equitable treatment.

22. Accordingly, the writ petition is
allowed by passing the following orders:

(i.) Para 5(1) of the Government Order
dated 4 December 2020 is declared
arbitrary, unreasonable, discriminatory and
1 All. Rishabh Kumar & Ors. Vs. State of U.P. & Ors.
1141
exceeding the authority conferred under
Act, 1972 and Rules, 1981.

(ii.) Respondents are directed to issue
NOC to all the petitioners recommended by
the Selection Committee.

(iii.)
All
those
Petitioners
prohibited, in view of the Government
Order dated 4 December 2020, from
participating in the counselling, shall
appear for counselling on the date to be
notified by the Board.

(iv.)
Petitioners
shall
be
given
appointment and placement of district
strictly in accordance with Rules, 1981.

(v.) This order shall apply to all the
candidates who have not approached this
court but are affected by the impugned
Government Order.

(vi.) The afore-noted orders shall be
complied by the respondents within four
weeks from the date of supply of copy of
this order.

No Cost.
----------
(2022)01ILR A1141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Service Single No. 8056 of 2020
Along with other 146 connected cases.

Rishabh Mishra & Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Lalta Prasad Misra, Amit kr. Singh Bhadauriya,
Prabhakar Srivastava

Counsel for the Respondents:
C.S.C., Ajay
A. Service Law - Constitution of
India,1950-Article
226-challenge
to-
publication of ATRE 2019 flawed answer
key-the writ petitions placed in Group-A
candidates who were vigilant before the
Court upto the date of decision of Division
bench
in
Abhishek
Srivastava
order
granted
one
mark
to
each
of
the
petitioners, if the award of one mark to
any of the petitioners in Group-A, they
find place in the merit list, the would get
the appointment, whereas those in GroupB are dismissed who instituted their writ
petitions after the judgment in Abhishek
Srivastava, is dismissed.(Para 1 to 42)

The writ petition is partly allowed. (E-6)

List of Cases cited:
1. Abhishek Srivastava & 14 ors. Vs St. of U.P. &
2 ors., Spl. Appl.Def. No. 343 of 2021

2. Ran Vijay Singh & ors. Vs St. of U.P. & ors.
(2018) 2 SCC 357

3. Malcom Lawrence Cecil D'Souza Vs U.O.I. &
ors. (1976) 1 SCC 599

4. U.P.Jal Nigam & anr. Vs Jaswant Singh & anr.
(2006) 11 SCC 464

5. Harwindra Kumar Vs Chief Eng., Karmik &
ors. (2005) 13 SCC 300

6. Km Rashmi Mishra Vs M.PPSC & ors. (2006)
12 SCC 724

7. Ranjan Kumar & ors. Vs St. of Bih. & ors.
(2014) 16 SCC 187

8. In Re Cognizance for Extension of Limitation,
Misc. Appl. No. 665 of 2021 in SMW(C) No. 3 of
2020

(Delivered by Hon'ble J.J. Munir, J.)

1. These are a bunch of 147 writ
petitions, where the petitioners, who are all
candidates appearing in the Assistant