# Shikha Singh and Ors v. State of U.P. and Ors 806 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 1 ILRA 805
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shikha-singh-and-ors-v-state-of-u-p-and-ors-806-indian-law-reports-allahabad-44480
- **Pages:** 22

## Headnote

C.S.C., Sri Alok Dwivedi, Sri Ambarish
Chatterji, Sri Ashok Kumar Yadav, Sri
Harshit Pathak, Sri Kumar Dhananjay, Sri
Rajiv Kumar Tripathi, Sri Vijay Gautam,
Sri Vimal Kumar Mishra, Sri H.N. Singh,
Sri P.N. Saxena, Sri Shailendra

A. Estoppel and waiver - Although the
petitioners have joined their place of
posting without any protest, but they
cannot be estopped in law from challenging
their place of posting, since the rights of
MRC candidates guaranteed under Articles
14 and 16(1) of the Constitution of India
having been violated, the principle of
estoppel and waiver will not be applicable
against the legal and constitutional rights.
The allotment of district made by the
respondents cannot be sustained in so far
as it relates to MRC candidates and to that
extent, it is quashed.
Constitution of India Article 226- Assistant
Teacher Recruitment Examination 2018 -
State Government order dated 9.1.2018
for appointment and selection of 68500
Assistant Teachers in Junior Basic School,
run and controlled by the U.P. Basic
Education Board - another government
order
dated
9.1.2018
for
conducting
Assistant
Teacher
Recruitment
Examination 2018 ("ATRE2018") by the
Regulatory Authority, U.P. Allahabad - The
U.P. Basic Education Board guidelines
dated 19.8.2018 provide for the allotment
of district on the basis of quality point and
preference of the candidate- Allotment of
Districts to selected candidates- though
the Petitioners are higher in merit in
comparison to candidates who have been
allotted
district
in
second
round
of
allotment, they have not been allotted
district of their own preference.

Held:-The candidates of reserved category
have been given appointment to the
districts of their choice, whereas the
candidates of reserved category who on
the basis of their higher marks have been
placed in general category could not be
provided the appointment in districts of
their choice as they were lower in rank in
general category (although meritorious to
their respective reserved category).Thus
the Meritorious Reserve Category(herein
after referred as 'MRC') candidates have
been denied district of appointment of
their choice simply because they are
meritorious

## Text

_Characters 0–39,470 of 72,868. This is a partial read: ask again with offset=39470 for what follows._

1 All. Shikha Singh and Ors. Vs. State of U.P. and Ors.
805

ii) If an officer is a witness to
any of the incidents which is the subject
matter of the enquiry or if the enquiry was
initiated on a report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes
known after the appointment of the
Enquiry Officer, during the enquiry, steps
should be taken to see that the task of
holding an enquiry is assigned to some
other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps
first to lead evidence against the
workman/delinquent charged and give
an opportunity to him to cross-examine
the witnesses of the employer. Only
thereafter, the workman/delinquent be
asked whether he wants to lead any
evidence
and
asked
to
give
any
explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply
a copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any." (Emphasis added)

11. Since in the present case,
procedure prescribed in Regulations, 1975
has not been followed and no order of
punishment as such has been passed,
therefore, alleged deemed termination of
petitioner is of no legal consequence and
it is a nullity.

12. Now, coming to second aspect, I
find that only such punishment can be
awarded which is prescribed under Rules
and any punishment which is not provided
in Rules is without jurisdiction. Dismissal
and removal are termination of specific
kinds while "termination" by itself may be
punitive
or
simplicitor.
Sometimes
cessation of contract of employment due
to resignation, retirement etc., is also
within the ambit of termination. Order of
termination,
therefore,
cannot
be
construed as one of the punishment
prescribed in Rules since termination by
itself is not one of the punishment
prescribed in Rules but specific kinds of
termination are mentioned in Rules and
only such punishment can be imposed and
not one which is not prescribed in Rules
as held by Supreme Court in Vijay Singh
vs. State of U.P. and others, JT 2012(4)
SC 105.

13. In view of above discussion, I
have no hesitation in holding that alleged
"deemed termination" of petitioner with
effect from 12.10.1991 pursuant to order
dated 09.09.1991 is patently illegal and
without jurisdiction.

14. In the result, the writ petition is
allowed. Order dated 09.09.1991 insofar
as it talks of "deemed termination" of
petitioner on and after 12.10.1991 is
hereby set aside. Petitioner shall be
entitled for all consequential benefits and
also a cost of Rs. 7,500/.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2019

BEFORE
THE HON'BLE PRAKASH PADIA, J.

Writ- A No. 19737 OF 2018
With
Other 264 Writ A Cases.

Shikha Singh and Ors....Petitioners
Versus
State of U.P. and Ors....Respondents
806 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Siddharth Khare, Sri Ajeet Kumar
Chaurasiya, Sri Alok Dwivedi, Sri Alok
Mishra, Sri Anubhav Chandra, Sri Arvind
Kumar Tiwari, Sri Ashok Khare, Sri
Avinash Jaiswal, Sri Babu Lal Ram,
SriBhawani Prasad Shukla, Sri Dinesh
Kumar Yadav, Sri Durga Charan Singh
Yadav, Sri Ganesh Kumar, Sri Ghanshyam
Das Mishra, Sri Kalp Nath, Sri Manoj
Kumar Tiwari, Sri Narendra Kumar, Sri
Paritosh Kumar Malviya, Sri Pramod
Kumar, Sri Pramod Kumar Chaudhary, Sri
Rajesh Kumar, Sri Rajesh Kumar Bind, Sri
Rajesh Kumar Srivastava, Sri Rajiv Kumar
Tripathi, Sri Ram Sajiwan Prajapati, Sri
Ramesh Kumar, Sri Surendra Kumar
Chaubey, Sri Tarun Agrawal, Sri Varun
Dev Sharma, Sri M.D. Singh Shekhar.

Counsel for the Respondents:
C.S.C., Sri Alok Dwivedi, Sri Ambarish
Chatterji, Sri Ashok Kumar Yadav, Sri
Harshit Pathak, Sri Kumar Dhananjay, Sri
Rajiv Kumar Tripathi, Sri Vijay Gautam,
Sri Vimal Kumar Mishra, Sri H.N. Singh,
Sri P.N. Saxena, Sri Shailendra

A. Estoppel and waiver - Although the
petitioners have joined their place of
posting without any protest, but they
cannot be estopped in law from challenging
their place of posting, since the rights of
MRC candidates guaranteed under Articles
14 and 16(1) of the Constitution of India
having been violated, the principle of
estoppel and waiver will not be applicable
against the legal and constitutional rights.
The allotment of district made by the
respondents cannot be sustained in so far
as it relates to MRC candidates and to that
extent, it is quashed.
Constitution of India Article 226- Assistant
Teacher Recruitment Examination 2018 -
State Government order dated 9.1.2018
for appointment and selection of 68500
Assistant Teachers in Junior Basic School,
run and controlled by the U.P. Basic
Education Board - another government
order
dated
9.1.2018
for
conducting
Assistant
Teacher
Recruitment
Examination 2018 ("ATRE2018") by the
Regulatory Authority, U.P. Allahabad - The
U.P. Basic Education Board guidelines
dated 19.8.2018 provide for the allotment
of district on the basis of quality point and
preference of the candidate- Allotment of
Districts to selected candidates- though
the Petitioners are higher in merit in
comparison to candidates who have been
allotted
district
in
second
round
of
allotment, they have not been allotted
district of their own preference.

Held:-The candidates of reserved category
have been given appointment to the
districts of their choice, whereas the
candidates of reserved category who on
the basis of their higher marks have been
placed in general category could not be
provided the appointment in districts of
their choice as they were lower in rank in
general category (although meritorious to
their respective reserved category).Thus
the Meritorious Reserve Category(herein
after referred as 'MRC') candidates have
been denied district of appointment of
their choice simply because they are
meritoriousto candidate of its respective
reserved category.

There is no doubt that MRC candidate is
entitled for allotment of preferential district
treating him as a reserved category candidate
only
for
allotment
of
district
of
their
preference. In the present case,the reserved
category candidates who have been placed in
select list as general candidate on account of
their better performance have been denied
place of appointment of their choice as they
are in merit of general candidate although
higher in merit of their respective reserved
category.

Case law relied/discussed: -

1.Ritesh
R.Shah
Vs.
Dr.Y.L.Yamul
and
others,(1996)3SCC253

2. State of Bihar and others Vs. M.Neethi
Chandra and others,(1996)6SCC36
1 All. Shikha Singh and Ors. Vs. State of U.P. and Ors.
807
3.
Anurag
Patel
Vs.U.P.Public
Service
Commission and others,(2005)9SCC742

4. C.M. Thri Vikrama Varma Vs. Avinash
Mohanty and others,2011(7) SCC385

5. Alok Kumar Pandit Vs. State of Assam and
others,2012(13) SCC516

6. Union of India Vs. Ramesh Ram,2010(7)
SCC234

7. Dega Venkata Harsha Vardhan and others
Vs. Akula Ventaka Harshavardhan and others
,2018(10) SCALE618

8. Tripurari Sharan and another Vs. Ranjit
Kumar Yadav and others passed in Civil Appeal
No.158 of 2018

9. Sunita Kumari Meena Vs. State of Rajasthan
and others, passed in S.B. Civil Writ No. 23680
of 2018

A. Fundamental Rule 54 - B Sub-Rule(2)-
Notwithstanding anything contained in
rule 53. Government servant under
suspension dies before conclusion of
disciplinary
or
court
proceedings
instituted
against
him.
Punishment
provided under the disciplinary Rules
can be imposed upon the government
servant and not on the family member
of the government servant. As soon as
an
incumbent
ceases
to
be
a
government servant upon death, no
penalty under the rules could have
been imposed upon him.

Where disciplinary proceedings are concluded
after the death of the government servant, the
period between the date of suspension and
the date of death shall be treated as duty for
all purposes and his family shall be paid the
full pay and allowances for that period to
which he would have been entitled had he not
been suspended, subject to adjustment in
respect of subsistence allowance already paid.

WritPetition Allowed.

Case Law discussed/ relied upon:-
1. Hirabai BhikAnr.ao Deshmukh v. State of
Maharashtra and others, (1985) ILLJ469
Bom

2. Neeraj v. Air India Ltd.,2017XAD(Delhi)245
Rajeshwari Devi
v. State of U.P. and
others,2011(2) ADJ (E-3)

(Delivered by Hon'blePrakash Padia, J.)

1. The present writ petition has been
filed with the following prayers:

"(i) a writ, order or direction in
the nature of certiorari quashing the first
merit list published 31.08.2018 as also the
second merit list published 02.09.2018
(Annexure 7 & 8 to the writ petition) in so
far as they pertain to allotment of districts
of individual petitioners.

(ii) a writ, order or direction of
a
suitable
nature
commanding
the
respondents to issue a revised select list
after taking into account the total number
of 68,500 post of Assistant Teachers
originally notified.

(iii) a writ, order or direction of
a
suitable
nature
commanding
the
respondents to allot district strictly in
order of merit after taking into account
the preference expressed for the district
by the individual petitioners within a
period to be specified by this Hon'ble
Court."

2. As the issues involved in the
Bunch of these writ petitions are identical,
they are being heard and decided together
by this common judgment and order.

3. The facts as stated in the writ
petition are that the State Government
issued a government order dated 9.1.2018
for appointment and selection of 68500
808 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant
Teachers
in
Junior
Basic
School, run and controlled by the U.P.
Basic Education Board.

4. The State Government has also
issued another government order on the
same date, i.e., 9.1.2018 for conducting an
examination, known as Assistant Teacher
Recruitment
Examination
2018
(hereinafter referred to as "ATRE 2018").
Examination was to be conducted by the
Regulatory Authority, U.P. Allahabad. By
the aforesaid government order, the
minimum qualifying cutoff for General
Category and Other Backward Class
category was fixed as 45% and for
Scheduled Castes and Scheduled Tribes
40% respectively.

5. The State Government, vide
government
order
dated
17.1.2018,
notified schedule for conducting ATRE
2018. In pursuance of the aforesaid
government order dated 17.1.2018, the
Examination Regulatory Authority issued
notification dated 23.1.2018, inviting
applications
for
ATRE
2018.
Subsequently, the State Government, vide
government
order
dated
21.5.2018
reduced the qualifying cutoff marks of
general category and Other Backward
Class from 45% to 40% and from 40% to
30% for Scheduled Castes and Scheduled
Tribes
category.
The
aforesaid
examination was held on 27.5.2018.

6. The government order dated
21.5.2018, by which the cutoff marks for
General and Other Backward Class
category was reduced from 45% to 40%
and from 40% to 30% for Scheduled
Castes and Scheduled Tribes candidate
was challenged before Lucknow Bench of
this Court by filing Writ Petition No.
20404 (Service Single) of 2018. In the
said writ petition, initially an interim
order was granted by Lucknow Bench of
this Court and the State Government was
directed to declare the result of ATRE
2018 as per the government order dated
9.1.2018.

7. In compliance of the order dated
24.7.2018 passed in writ petition no.
20404 (Service Single) of 2018, the State
Government issued a government order
dated 8.8.2018, directing the examination
regulatory authority to declare the result
of ATRE 2018, as per the government
order dated 9.1.2018. The result of ATRE
2018 was declared on 13.8.2018. Total
41566
candidates
qualified
in
the
aforesaid
ATRE
2018.
The
State
Government issued a government order
dated 18.8.2018 for appointment of
candidates qualified in ATRE 2018.

8. The U.P. Basic Education Board
issued
a
circular/notification
dated
19.8.2018, inviting online application and
district preference from 41556 candidates,
who have passed ATRE 2018. The U.P.
Basic Education Board also issued
guidelines
dated
19.8.2018,
which
provides that the allotment of district will
be made on the basis of quality point and
preference
of
the
candidate.
The
successful candidates of ATRE 2018
submitted their online applications and
accordingly, the Board issued select list of
35420 candidates with allocation of
district and directed the District Level
Authority,
i.e.,
the
District
Basic
Education
Officer
to
conduct
the
counseling and after the verification of the
records, issue letter of appointment to
selected candidates as per the schedule.

9. In pursuance of the selection and
issuance of appointment letter by the
1 All. Shikha Singh and Ors. Vs. State of U.P. and Ors.
809
concerned
District
Basic
Education
Officer, i.e., the Appointing Authority, the
petitioners were appointed.

10. There remain 6136 candidates
who were declared qualified in ATRE
2018 but were not allotted any district.
These candidates mostly belong from
unreserved category, as reserved category
candidate occupied the general seat meant
for general category on account of their
higher merit. Out of 6136 candidates,
6028 candidates were of general category,
853 of Other Backward Class category,
22 in Scheduled Castes Category and 1
candidate
was
Scheduled
Tribes
Category.

11. It is further stated in the writ
petition that the State Government has
also taken a political decision to adjust
these 6136 candidates. In pursuance of the
aforesaid decision, a further exercised for
allotment of district was carried on by the
respondents and these 6136 candidate
were given appointment after allotment of
district by the District Basic Education
Officer, as per their quality points marks
and preference.

12. It is further alleged by the
petitioners that in pursuance of various
appointment letters, the petitioners have
joined their place of posting under protest.
The grievance of the petitioners in the
writ petition is that though they are higher
in merit in comparison to candidates who
have been allotted district in second round
of allotment, have been allotted district of
their choice whereas the petitioners
despite the fact that they are higher in
merit, they have not been allotted district
of their own preference. The petitioners
have challenged the allotment of district
basically on the following grounds that-

I. The Board has arbitrarily
reduced notified vacancies of 68500 to
41506 without any authority of law.

II. The Board has arbitrarily
varied district-wise vacancies without any
authority of law.

III.
The
Board
not
only
manipulated the vacancies of various
district
but
also
committed
gross
illegality, irregularity or arbitrariness in
allotment of district to the candidates
having higher merit. Certain examples
have been mentioned in the writ petition.

IV. The candidates of reserved
category having higher merit and selected
against unreserved post were also denied
their
first
preference,
whereas
the
candidates of same category having lower
merit and selected under their respective
reserved category have been granted their
first preference.

V. The candidates selected in
second list, who were having lower merit
than those of selected in the first list have
been granted district of their first
preference.

13. All the petitioners were selected on
the post of Assistant Teachers in Junior Basic
Schools run and controlled by the U.P. Basic
Education Board. The petitioners before this
Court are aggrieved on account of denial of
the allocation of appropriate districts as per
their
merit-cum-preference
while
being
appointed as Assistant Teacher in Junior Basic
Schools. The grievances of the petitioners are
that while less meritorious candidates in their
respective categories were allotted districts of
their choice but the petitioners were prevented
to get the district of their choice in spite of the
fact that they are meritorious.

14. It is submitted by the learned counsel
for the petitioners that the manner of allotment
of district adopted by the respondents is grossly
810 INDIAN LAW REPORTS ALLAHABAD SERIES
unfair, unjust and arbitrary. The same is
violative of principles of equality in as much as
the more meritorious candidates, who have
ranked higher have been denied allocation of
districts for which they had given their
preferences and less meritorious candidates
have been allocated the said districts.

15. Counter affidavits have been
filed by Sri Dev Pratap Singh, the Special
Secretary, Basic Education, Government
of U.P. Lucknow. In para 6 of the counter
affidavit it is stated that the process of
appointment of 41556 candidates who
applied online e-form between 21.8.2018
to 28.8.2018 against 41556 vacancies was
initiated. Final merit list was drawn as per
schedule
of
U.P.
Basic
Education
(Teachers)
Service
Rules,
1981
(hereinafter referred to as "Rules of
1981"). Some of the applicants belong to
reserve category stood higher on merit
and occupied seat in open category along
with general candidate, whereby limiting
the chances of general category candidate.
Some reserved category candidates did
not give choice or their chance got
exhausted, as such only 35420 candidates
could be appointed and 6136 candidates
could not be appointed. Out of 6136
candidates, 6028 candidates belong to
General Category, 85 in Other Backward
Class, 22 in Scheduled Castes and 1 in
Scheduled Tribes category.

16. It is further stated in the counter
affidavit that to accommodate left out
6136 candidates and to appoint them on
remaining vacancies out of 68500, i.e.,
26944 posts which were available were
released so that these candidates be also
allotted district based on remaining
available
vacancies
in
district
in
accordance with their merit category and
preference. Therefore, the allocation of
district was done in two phases and each
allocation has been done by NIC in
accordance with criteria laid down in
Rules of 1981 in fair and transparent
manner.

17. It is further stated that the
petitioners have been allotted district
which were on low preference of their
choice because their candidature had been
considered
in
the
first
phase
of
preparation of merit list by the NIC by
taking into consideration all 41556 posts
of Assistant Teachers. The petitioners
were having low merit in their category,
NIC had allotted them district as per their
merit in the first phase of preparation of
merit list. In paragraph 10 of the counter
affidavit it is stated that to accommodate
left out 6136 candidates and to appoint
them on remaining vacancies out of
68500, i.e., 26944 posts which were
available, were released so that these left
out candidates could be allotted district
based on remaining available vacancies in
district on their merit and preference,
therefore, allocation of district was done
in two phases and each allocation has
been done by NIC in accordance with
criteria laid down in Rules of 1981 in fair
and transparent manner.

18. It is further stated in the
counter affidavit that to accommodate
left out 6136 candidates and to appoint
them on remaining vacancies out of
68500, i.e., 26944 posts were released.
It is also stated in the counter affidavit
that the process of appointment of
41556 candidates, who applied online eform between 21.8.2018 to 28.8.2018
against 41556 vacancies when the
district allocation after the final merit
list drawn had been carried on as per
schedule of Rules of 1981.
1 All. Shikha Singh and Ors. Vs. State of U.P. and Ors.
811

19. It is also stated in the counter
affidavit that after the result of ATRE
2018 was declared, only 41556 candidates
have qualified. The State Government in
its meeting had decided that the vacancies
advertised for recruitment should be
reduced
to
41556
for
offering
appointment by proportionately reducing
the numbers of vacancies in all the district
of State so that no vacancy in any district
is unfilled. It was a bona fide decision of
the State Government, however, after first
phase of allotment it was found that 6136
candidates could not get any district
allotted to them for appointment, only to
accommodate left out 6136 candidates
and to appoint them on remaining
vacancies out of 68500, i.e., 26944 posts
available, were released, so that these
candidates could also be allotted district
based on remaining available vacancies in
the district in accordance with their merit,
category
and
preference
therefore,
allocation of district was done in two
phases and each allocation was done by
the NIC by the criteria laid down in Rules
of 1981 in a fair and transparent manner.
Therefore only those candidates who had
been appointed in second phase allotted
district of their higher preference as
subsequently released vacancies of 26944
posts were proportionately divided in all
the district of State for appointment of left
out candidates.

20.

Various
impleadment
applications have been filed by the
candidates, who were allotted district in
second phase.

21. The case set up by the
candidates who have filed impleadment
applications is in short is that although
68500 vacancies were advertised but as
41556 candidates could qualify in ATRE
2018, the vacancies were reduced to
41556. The petitioners have accepted the
number of reduced vacancies and have
applied for their appointment. They have
accepted the amended procedure. Once
the selection is completed and list was
prepared
district-wise,
district-wise
counseling and appointment was over.
The appointments have been given to the
petitioners as well as the respondents on
their district and the petitioners as well as
the respondents have submitted their
joining and working without objection,
there is no scope of interference.

22. It is further stated that all the
incumbents including the petitioners as
well as the respondents became member
of district cadre as per the Rules of
1981, therefore any action to remove
them requires to be taken as per the
provisions of Rules of 1981. Another
objection has been raised that the
persons who are to be affected have not
been impleaded as respondents in the
writ petition, as such the writ petition
deserves to be dismissed.

23. Along with the written
submission submitted by the counsel
for the proposed respondents, one
order passed by this Court in Writ-A
No. 19125 of 2018 (Aman Singh
Chandel and 4 others Vs. State of U.P.
and others) decided on 10.9.2018 have
been filed. Vide order dated 10.9.2018
the writ petition has been dismissed on
the ground that the petitioners were
granted posting in same district for
which
they
participated
in
the
counseling and this being a policy
decision of Government to post a
candidate in same district for which
the counseling has been done, the writ
petition was not maintainable.
812 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Various orders passed by
Lucknow Bench of this Court being
Service Single Writ Petition Nos. 28525
of 2018, 30093 of 2018, 30147 of 2018
and 28447 of 2018 have been brought on
record which pertains to same dispute.
The Court has disposed off the above
mentioned writ petitions, granting liberty
to the petitioners to raise their grievances
before the respondent no. 2 with a further
direction to the aforesaid respondents to
consider and pass appropriate reasoned
speaking order within a period of two
weeks from the date of production of
certified copies of the orders.

25. It is also argued on behalf of the
respondents that there are no allegations
of malafides in the matter of district
allocation and it is not the petitioners' case
that they have been deliberately denied
allocation of district as per their merit and
preferences. Other arguments were made
that
the
entire
process
of
district
allocation is done electronically, i.e., by
employing a computer program/software.
The same is not done manually.

26. It is contended that all the
candidates
were
allocated
different
districts by adopting the same system as
adopted in the case of petitioners. The
petitioners should have impleaded all
those candidates who are likely to be
affected on account of the present
challenge. He further submits that present
petition is bad for non-joinder of
necessary parties.

27. It is further argued by the
learned counsel for the respondents that
the procedure for selection of 68500
Assistant Teachers was initiated by
issuing
advertisement.
Only
41556
applicants were declared selected and
appointed in the first round of the
appointment. Subsequently, the State
Government had taken decision to release
26944 vacancies and against the said
26944 vacancies, the remaining selected
candidates,
i.e.,
6136
were
given
appointment. Thus the selection and
appointment was in two phase as such the
petitioners
who
were
selected
and
appointed in first phase has no right to
challenge the second phase of the
appointment.

28. The learned counsel for the
respondents
has
further
raised
an
objection that 6136 candidates appointed
in pursuance of second round of the
selection and appointment had not been
impleaded as such the present writ
petition is liable to be dismissed for nonjoinder of necessary parties.

29. It was further argued by the
learned counsel for the respondents that
the entire exercise of district allocation, if
required to be revised at this stage, would
lead to great inconvenience. I do not agree
that these two reasons. Firstly, when the
fundamental rights of a citizens are pitted
against
some
administrative
inconvenience that the respondents may
suffer in case relief is to be granted to the
aggrieved
petitioners,
the
so-called
administrative inconvenience has to give
way to the fundamental rights of the
citizens. Secondly, even the respondents
stated that the entire process of district
allocation
has
been
undertaken
electronically i.e., through a computer
system/software and that being the
position.

30. So far as the first contention
raised by the learned Standing Counsel
that all 6136 candidates in various
1 All. Shikha Singh and Ors. Vs. State of U.P. and Ors.
813
districts is second phase and selection and
appointment is concerned, the said
contention is wholly devoice of merits.
The
State
Government
has
issued
advertisement inviting applications for
68500 Assistant Teachers. Only one
examination was conducted by the
Regulatory Authority and in the said
examination
41556
candidates
were
declared eligible as per cutoff fixed by the
State Government. Out of 41556 eligible
and qualified candidates, only 35420 were
given appointment. Without initiating any
fresh selection process, remaining 6136
candidates declared eligible in pursuance
of the examination conducted by the
Regulatory
Authority,
were
given
appointment, thus the contention raised by
the learned Standing Counsel that 6136
candidates were given appointment in
second round of selection against 26944
vacancies is misconceived and is not
tenable.

31. So far as the objection regarding
non-joinder
of
necessary
party
is
concerned, this Court vide order dated
28.11.2018
has
directed
the
third
respondents,
i.e.,
Board
of
Basic
Education, U.P. Allahabad to ensure that
the notice is to be published in the news
dailies of the concerned district, both
having
vide
circulation
and
local
circulation within a period of one week
from today and a circular to that effect
should be issued at its end to all the
District Basic Education Officer in the
State, with regard to the hearing of
present writ petition. The order dated
28.11.2018 reads as under:

"Impleadment application was
filed on 21st October, 2018. Office is
directed to trace out the same and place it
on record.

The matter relates to the joining
and posting in preferred district on the
basis of cut off marks in junior basic
schools run by U.P. Basic Education
Board.

The argument advanced is that
on account of serious error of the
respondent authorities, the petitioners
who were higher in merit, on the basis of
which they ought to have been given
posting on their preferred districts the
persons below in rank have been given
choice posting and this has prejudiced
their rights.

This petition No. 19737 of 2018
is taken up as the leading petition but any
order that may be passed in this writ
petition may have adverse effect on those
teachers who have already been given
posting of their choice for the fault of the
authorities and they may get prejudiced if
they are not heard.

Let the third respondent cause
publication of notice about the hearing of
this petition along with several other
identical petitions scheduled on 10th of
December, 2018 asking teachers who may
have concern to defend themselves under
Chapter XXIII Rule 5-A of Rules of Court,
1952 through counsel before this Court
on the date fixed. The third respondent
has to ensure that the notice is published
in the news dailies of the concerned
district, both having vide circulation and
local circulation within a period of one
week from today and a circular to that
effect should be issued at its end to all the
District Basic Education Officers in the
State.

The matter is directed to be
listed peremptorily, on 10th December,
2018 for final disposal.

A copy of this order may be
given to the learned Standing Counsel,
learned
Additional
Chief
Standing
814 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel free of cost for necessary
compliance within twenty four hours."

32. In compliance of the order
dated 28.11.2018 passed by this Court,
the Secretary, U.P. Basic Education
Board,
Prayagraj
has
issued
an
advertisement on 3.12.2018 mentioning
therein that the writ petitions with
regard to the allotment of district in
respect
of
appointment
of
68500
Assistant Teachers, the matter is listed
before this Court on 10.12.2018. The
persons aggrieved may appear and plead
their case.

33. In pursuance of the aforesaid
publication, various persons have filed
their impleadment applications through
their counsel namely Sri M. D. Singh
'Sekhar', learned Senior Counsel, Mr. H.
N. Singh, learned Senior Advocate
assisted by Mr. Alok Dwivedi, Sri Alok
Dwivedi, Sri Pankaj Kumar Ojha, Sri
Amit Kumar Singh Bhadauria and Ajit
Kumar Chaurasiya, Sri Shailendra, Sri
Rajesh Kumar Srivastava, Sri Avinash
Jaiswal and Sri Anubhav Chandra, Sri
Alok Mishra, Sri Ganesh Kumar Verma,
Sri A. K. Tiwari, Sri Rajiv Kumar
Tripathi, Sri Pramod Kumar Chaudhary
and Sri Ram Sajiwan Prajapati, Sri
Bhawani Prasad Shukla, Sri Durga
Charan Yadav and Sri Manoj Kumar
Tiwari,
Sri
Ramesh
Kumar,
Vijay
Gautam, Sri Babu Lal Ram and Sri Rajesh
Kumar, Sri S. K. Chaubey, Sri Varun Dev
Sharma, Sri Pramod Kumar, Sri Tarun
Agrawal, Sri Rajesh Kumar Bind and Sri
Kalp Nath, Sri Abhishek Srivastava, Sri
Paritosh Kumar Malviya, Mr. Shailendra
had been heard. Thus, the persons who
may be affected by any of the orders
passed in the present writ petition, had
been given notice and information. Thus
the ground of non-joinder of necessary
party is misconceived and is not tenable.

34. Sri H.N. Singh, learned Senior
Advocate assisted by Mr. Alok Dwivedi
apart from pointing out the procedure for
appointment of Assistant Teachers as
contemplated in U.P. Basic Education
(Teachers) Service Rules, 1981 has
further stated that 68500 posts of
Assistant
Teachers
in
Junior
Basic
Schools run by the Basic Education Board
were advertised and in pursuance thereof,
the
petitioners
and
the
proposed
applicants
have
participated
in
the
selection process. As per the cutoff marks
fixed
by
the
respondents,
41556
candidates were declared successful. It is
further
stated
that
as
only
41556
candidates were declared eligible, as such,
the numbers of vacancies were reduced
accordingly in respective districts except
for
8
aspirational
districts,
namely
Fatehpur,
Chandauli,
Sonbhadra,
Siddharth
Nagar,
Chitrakoot
Dham,
Balrampur, Behraich and Shrawasti. It is
further stated that in pursuance of the
government orders dated 18.8.2018 and
19.8.2018, the Secretary of the Board has
published advertisement and instructed
only to fill up the vacancies out of 41556
candidates and preference choice was
obtained against 41556 vacancies. It is
further stated that remaining 25944
vacancies remained vacant, as no person
was eligible and qualified for such post in
pursuance of the aforesaid examination.

35. It is also stated that in
accordance with sub-section 6 of section 3
of the Act No. 4 of 1994, if a person
belonging to
reserved category get
selected on the basis of merit in a open
competition with general category, he
shall not be adjusted against the vacancies
1 All. Shikha Singh and Ors. Vs. State of U.P. and Ors.
815
reserved for such category under subsection 1 of Section 3 of the U. P. Public
Services
(Reservation
for
Scheduled
Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994 which is
reproduced hereinbelow :-

3. Reservation in favour of
Scheduled Castes, Scheduled Tribes and
Other Backward Classes. - [(1) In public
services and posts, there shall be reserved
at the stage of direct recruitment, the
following percentage of vacancies to
which recruitment's are to be made in
accordance with the roster referred to in
sub-section (5) in favour of the persons
belonging to Scheduled Castes, Scheduled
Tribes and Other Backward Classes of
citizens, -

(a) in
the
case
of
Twenty-one per cent;
 Scheduled Castes

(b)
in
the
case
of
Two per cent;
 Scheduled Tribes

(c)
in
case
of
Other
Twenty-seven per cent:
 Backward Classes of citizens

Provided that the reservation
under clause (c) shall not apply to the
category of Other Backward Classes of
citizens specified in Schedule II:

Provided
further
that
reservation of vacancies for all categories
of persons shall not exceed in any year of
recruitment fifty per cent of the total
vacancies of that year as also fifty per
cent of the cadre strength of the service to
which the recruitment is to be made;

36. It is further stated that the Board
of Basic Education, after receiving the
preference
of
district
of
respective
candidates allotted the district keeping in
mind the basis of quality point and choice
of district given by the candidate. It was
open for a candidate to give their choice
in respect of number of district. It is also
stated that the post of Assistant Teachers
is a district cadre post and appointing
authority is District Basic Education
Officer. The Basic Education Board
invited
applications
district-wise
for
counseling
keeping
in
view
the
reservation of vacancies in respective
district and ultimate result was that the
reserved category candidate who have
successful in general category occupy the
vacancies of general category and the
vacancies of reserved category remained
vacant. It is further stated that since the
candidates who have already passed the
Assistant
Teacher
Recruitment
Examination for their accommodation
further vacancies were released in general
category and the vacancies of reserved
category corresponding to the same are
still waiting its placement and will be
treated as carry forward.

37. The arguments of learned Senior
Counsel is that the candidates have given
their choice against 41556 vacancies they
have been allotted district and they have
voluntarily participated in the counseling
of respective districts. After issuance of
appointment order in respective district
and their joining in pursuance of the
appointment orders, it is not open for
them to question the process of selection
by which they were appointed. The
candidates have no right to be appointed
in a particular district. It is always
incumbent that the candidate may be
adjusted in any district if they have not
been offered the appointment as per their
choice.

38. It is also contended that total
26944 vacancies were released in special
816 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances
to
accommodate
the
candidates who were left over and could
not be offered appointment because of
reservation rules. The case of candidates
who have submitted their impleadment
application is that they were called for
counseling
against
26944
vacancies
released subsequently and as per the
vacancies available, they have been
appointed and have joined their respective
district. All the candidates have joined
and
thus
they
are
no
more
selectee/candidate. They have accepted
their own choice and their reshuffling or
transfer may be governed only by the
Transfer Rule known as Uttar Pradesh
Basic Education (Teachers) (Posting)
Rules 2008.

39. The contention raised by Shri
H.N. Singh, learned Senior Counsel that
further 26944 vacancies were release to
accommodate the candidates who were
left over and could not be offered
appointment because of reservation rules,
is misconceived. The selection process for
selection and appointment of 68500
vacancies
was
initiated
by
issuing
government order dated 18.8.2018 and
19.8.2018 only one examination, namely,
Assistant
Teachers
Recruitment
Examination 2018 was conducted by the
Regulatory Authority and in the said
examination,
41556
candidates
were
declared successful.

40. The arguments raised by Shri
H.N. Singh that 26944 posts were
released so that 6136 candidates could not
be given their appointment is second
round of selection, is misconceived. The
fact is that in pursuance of one selection
process 41556 candidates were declared
eligible and they were entitled to be
considered for their appointment as
Assistant Teacher. There is no question of
release of any further vacancies and
initiation of fresh selection process as
41556 were already declared eligible to be
appointed as Assistant Teacher.

41. Out of 6136 candidates who
could not be given appointment though
were eligible, 6028 candidates belongs to
General Category, 85 Other Backward
Class category, 22 Scheduled Castes
Category
and
1
Scheduled
Tribes
Category. The respondents have initiated
the process of allotment of district with
regard to 6136 candidates who were
eligible. In this process, the candidates of
reserved category have been
given
appointment to choice of their district,
whereas the candidates of reserved
category who on the basis of their higher
marks have been placed in general
category could not be provided the
appointment in choice of their district as
they were lower in rank in general
category (although meritorious to their
respective reserved category). Thus the
Meritorious
Reserve
Category
(hereinafter referred as 'MRC') candidates
have been denied district of appointment
of their choice simply because they are
meritorious to candidate of its respective
reserved category.

42. In case of Ritesh R. Shah Vs.
Dr. Y.L. Yamul and others, reported in
(1996) 3 SCC 253, it was held that :-

"In view of the legal position
enunciated by this Court in the aforesaid
cases the conclusion is irresistible that a
student who is entitled to be admitted on
the basis of merit though belonging to a
reserved category cannot be considered
to be admitted against seats reserved for
reserved category. But at the same time
1 All. Shikha Singh and Ors. Vs. State of U.P.