# Shivam Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-08
- **Case number:** Special Appeal No. 259 of 2024
- **Bench:** Ashwani Kumar Mishra, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-pandey-ors-v-state-of-u-p-ors-53378
- **Pages:** 15

## Headnote

368 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - UP Public Services
(Reservation for Economically Weaker
Section) Act, 2020 - Sections 1(1), 3(3) &
4 - Office Memorandum dated 18.02.2019
& 13.08.2019 - Reservation for Economic
Weaker
Section
-
Advertisement
for
69,000 post of Assistant Teachers was
issued on 17.05.2020 - Act of 2020 shows
that it is to come into force on 01.02.2019
- However, Hon'ble Single Judge opined
that Act of 2020 came to be enacted on
31.8.2020, hence the fact that it has been
made effective from 18.2.2019 would not
be of any help to the appellant - Validity
challenged - Held, appropriate legislature
can always introduce legislation with
retrospective effect - It would be difficult
to accept that the EWS reservation will
commence from 31.8.2020 and not from
18.2.2019 when office memorandum was
issued by the St. providing for EWS
reservation in employment of St.. (Para 36
and 37)
B. Constitution of India,1950 - Article 162
- Executive power, extent thereof - It's
relativity with legislative power - Held,
executive powers of St. is co-extensive
with its legislative power - Once provision
for EWS reservation was made available to
the St. by virtue of 103rd Constitutional
Amendment, it was open for the St. to
implement EWS reservation either by
making legislation or by issuing executive
instructions - The St. Government was
competent to provide for EWS reservation
in public employment of St. by issuing
office
memorandum
dated
18.2.2019.
(Para 37 and 40)
C. Grant of relief - Process of recruitment
was already concluded - None of the
selected candidates has been impleaded
as a party respondent - Competence of
court
to
issue
direction,
of
which
implementation
would
be
a
mere
impossibility - Held, in the event 10%
EWS
Reservation
is
required
to
be
extended a direction will have to be issued
to draw a merit list for candidates
belonging to EWS Category - It would not
be prudent exercise of discretion for this
Court to issue any direction to extend
10% EWS reservation in the recruitment
in
question,
at
this
stage,
as
implementation of such direction would be
a mere impossibility. It is otherwise
settled
that
without
impleadment
of
persons affected or any challenge made to
their appointment no direction can be
issued which has the effect of dislodging
selected candidates. (Para 47)
Special Appeal disposed of. (E-1)
List of Cases cited:

## Text

_Characters 0–39,990 of 49,290. This is a partial read: ask again with offset=39990 for what follows._

5 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
367
4.12.1989 and the termination order
dated 17.10.1989 was kept in abeyance. The
writ petition was thereafter dismissed as
having become infructuous on 17.10.2001.
Upon
an
application
moved
by
the
petitioners, the said order was recalled on
8.3.2010 and on the same day, it was got
dismissed as not pressed. However, during
the intervening period, the appellants had
been absorbed on two existing vacancies by
means of an order dated 31.3.2006. The
appellants having been absorbed on existing
vacancies, the irregularity, if any initially in
their appointments, would be deemed to have
been cured as per the judgments of the
Supreme Court cited by learned counsel for
the appellants i.e. Mansaram (supra) and
Madras Aluminium Company Limited
(supra). As per these judgments definitely if
any action had to be taken, it ought to have
been taken within reasonable time and that
having not been taken, the appellants could
not now be penalized. Further, the Court is of
the view that as per the judgment of the
Supreme Court in Radhey Shyam Yadav
(supra) the appellants definitely were not at
fault. As per the judgment of the Supreme
Court in Vinod Kumar (supra) and Jaggo
(supra) we find that definitely when there
was an irregularity in the appointments of the
appellants, that irregularity had been removed
and the appointments were regularized.

15. In the ultimate analysis, we are
thus of the view that the writ petitions had to
be allowed. The orders of the Joint Director
of Education which were passed on the fact
that the initial appointment was wrongly
made, were erroneously passed.

16. For all the reasons which we
have stated above, we are of the considered
view that if there was any irregularity in the
initial appointment, it was done away with by
the State and, therefore, it cannot be said that
the appellants did not come within the
purview of the relevant provisions relating to
regularisation. The appellants after they were
absorbed on regular vacancies, it had to be
taken that they were always working on the
regular vacancies and since they were
throughout teaching till the date when they
retired, it could be taken that they were
always in continuous service.

17. Thus, for the reasons stated
above, Special Appeal No.167 of 2024 and
Special Appeal No.200 of 2024 are
allowed. The judgment and order of the
learned Single Judge dated 16.12.2023
passed in Writ-A No.11129 of 2023 and
Writ-A No.11163 of 2023 is set-aside. The
writ petitions are allowed and the order
dated 2.6.2023 passed by the Joint Director
of Education, Jhansi Region, Jhansi is also
quashed. The appellants be treated as
having been regularized and they be
provided with all consequential benefits.
----------
(2025) 5 ILRA 367
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2025

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Special Appeal No. 259 of 2024
With
Other connected cases

Shivam Pandey & Ors. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Seemant Singh

Counsel for the Respondents:
Archana Singh, C.S.C.
368 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - UP Public Services
(Reservation for Economically Weaker
Section) Act, 2020 - Sections 1(1), 3(3) &
4 - Office Memorandum dated 18.02.2019
& 13.08.2019 - Reservation for Economic
Weaker
Section
-
Advertisement
for
69,000 post of Assistant Teachers was
issued on 17.05.2020 - Act of 2020 shows
that it is to come into force on 01.02.2019
- However, Hon'ble Single Judge opined
that Act of 2020 came to be enacted on
31.8.2020, hence the fact that it has been
made effective from 18.2.2019 would not
be of any help to the appellant - Validity
challenged - Held, appropriate legislature
can always introduce legislation with
retrospective effect - It would be difficult
to accept that the EWS reservation will
commence from 31.8.2020 and not from
18.2.2019 when office memorandum was
issued by the St. providing for EWS
reservation in employment of St.. (Para 36
and 37)
B. Constitution of India,1950 - Article 162
- Executive power, extent thereof - It's
relativity with legislative power - Held,
executive powers of St. is co-extensive
with its legislative power - Once provision
for EWS reservation was made available to
the St. by virtue of 103rd Constitutional
Amendment, it was open for the St. to
implement EWS reservation either by
making legislation or by issuing executive
instructions - The St. Government was
competent to provide for EWS reservation
in public employment of St. by issuing
office
memorandum
dated
18.2.2019.
(Para 37 and 40)
C. Grant of relief - Process of recruitment
was already concluded - None of the
selected candidates has been impleaded
as a party respondent - Competence of
court
to
issue
direction,
of
which
implementation
would
be
a
mere
impossibility - Held, in the event 10%
EWS
Reservation
is
required
to
be
extended a direction will have to be issued
to draw a merit list for candidates
belonging to EWS Category - It would not
be prudent exercise of discretion for this
Court to issue any direction to extend
10% EWS reservation in the recruitment
in
question,
at
this
stage,
as
implementation of such direction would be
a mere impossibility. It is otherwise
settled
that
without
impleadment
of
persons affected or any challenge made to
their appointment no direction can be
issued which has the effect of dislodging
selected candidates. (Para 47)
Special Appeal disposed of. (E-1)
List of Cases cited:
1. Mahendra Pal & ors. Vs St. of U.P. & ors.;
2023 (3) ADJ 496
2. Raghvendra Pratap Singh Vs St. of U.P. &
ors., 2020 (4) ADJ 490 (LB)
3. Devesh Sharma Vs U.O.I. & ors.; (2023) 18
SCC 339
4. Navin Kumar & ors. Vs U.O.I. & ors.; 2024
SCC OnLine SC 2360
5. Assn. of Medical Superspeciality Aspirants &
Residents Vs U.O.I.; (2019) 8 SCC 607 : 2019
SCC OnLine SC 1055

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Praveen Kumar Giri, J.)

1. This bunch of special appeals arise
out of a composite judgment rendered by
the learned Single Judge on 29.02.2024 in a
bunch of writ petitions, whereby the
reservation
to
Economically
Weaker
Sections (for short 'EWS') is denied in
respect of recruitment undertaken for
69,000
posts
of
Assistant
Teachers.
Learned Single Judge has held that
recruitment has commenced prior to
introduction
of
reservation
in
EWS
category.
Thus
aggrieved,
the
writ
petitioners are before us in the present
batch of special appeals.
5 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
369
2. Shri Ashok Khare and Shri G.K.
Singh, learned Senior Advocates leading
the submissions on behalf of the appellants
in the present batch of special appeals
submit that reservation for EWS was
introduced by way of 103rd Constitutional
Amendment
on
12.01.2019.
State
legislature thereafter enacted the Uttar
Pradesh Public Services (Reservation for
Economically Weaker Section) Act, 2020
U.P. Act No. 10 of 2020 for giving effect to
such reservation. The Act was given
retrospective application vide Section 1(1)
of the Act, which is reproduced hereinafter:

"1. (1) This Act may be called the
Uttar Pradesh Public Services (Reservation
For Economically Weaker Section) Act,
2020. (2) It shall be deemed to have come
into force on February 01, 2019."

3. Section 3(3) and (4) of the Act
aforesaid
are
also
relevant
and
are
reproduced hereunder :

"(3) The office memorandum
issued
by
Karmik
Anubhag-2
wide
no.1/2019/4/1/2002/ka-2/19T.C.II,
dated
18.02.2019 shall be deemed to have been
issued under this section.

(4) For applying the reservation
under sub-section (1), roaster has been
issued
by
notification
O.M.
No.5/2019/4/1/2002/ka-2/2019T.C.-
I,
dated 13th August, 2019 by the State
Government which shall be continuously
applied till it is exhausted."

4. Even before U.P. Act No. 10 of
2020 was enacted the State of U.P. issued
office
memorandum
dated
18.2.2019
providing for reservation to Economically
Weaker Sections in public employment.
Executive power of State was invoked for
the purpose. Section 13 of the Act of 2020
contained Savings Clause which is relevant
for the present purposes and is reproduced
hereinafter :

"13. The provisions of this Act
shall not apply to cases in which selection
process
has
been
initiated
before
commencement of this Act and such cases
shall be dealt with in accordance with the
provisions of law and Government order as
they stood before the commencement.

Explanation: For the purposes of
this section the selection process shall be
deemed to have been initiated where, under
the relevant service rules, recruitment is to
be made on the basis of -

(i) written test or interview only,
the written test or the interview, as the case
may be, has started, or
 (ii)
both
written
test
and
interview, the written test has started.

(2) The provisions of this Act
shall not apply to appointment, to be made
under the Uttar Pradesh Recruitment of
Dependent of Government Servant Dying in
Harness Rules, 1974."

5. According to the petitioners, the
process of recruitment for the post of
assistant teacher had commenced pursuant
to the advertisement published by the
respondents
on
17.5.2020,
by
when
reservation in public employment under
EWS category was already implemented in
State of U.P. vide office memorandum
dated 18.2.2019. The petitioners, therefore,
submit that the benefit of EWS reservation
ought to have been extended in the
recruitment
exercise
initiated
for
appointment to the 69,000 posts of assistant
teachers in Basic Institutions.

6. The appointment to the post of
assistant teacher in educational institutions
of U.P. Basic Education Board (hereinafter
370 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as 'Basic Institutions') is
regulated
by
U.P.
Basic
Education
(Teachers Service) Rules, 1981. These
Rules came to be amended from time to
time. For the present purposes, it would
suffice to refer to the 22nd Amendment and
23rd Amendment made in the Rules of
1981. Rule 14 (1) of 1981 rules as amended
vide
22nd
Amendment
notified
on
15.3.2018 read as under :

"14(1)(a)
Determination
of
vacancies. In respect of appointment, by
direct recruitment to the post of Mistress of
Nursery Schools and Assistant Master or
Assistant Mistress of Junior Basic Schools
under clause (a) of Rule 5, the appointing
authority shall determine the number of
vacancies as also the number of vacancies
to be reserved for candidates belonging to
Scheduled
Castes,
Scheduled
Tribes,
Backward Classes, and other categories
under Rule 9 and published in at least two
leading daily newspapers having adequate
circulation in the State as well as in
concerned district inviting applications
from candidates possessing prescribed
training 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."

7. Rule 14 (1) was further amended
by virtue of 23rd Amendment, notified on
24.1.2019, which reads as under :

 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 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 newspapers having
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."

8. Rule 14 of Rules 1981, as
amended by 22nd Amendment Rules
requires appointment to be made on the
post of Assistant Teacher from the persons
who
possess
requisite
qualification
including passing of Assistant Teacher
Recruitment
Examination
(hereinafter
referred to as 'ATRE').

9. A Government Order was issued
on 1.12.2018 initiating process of holding
5 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
371
ATRE examination for 69,000 posts of
Assistant Teachers in the Basic Institutions.
The Government Order dated 1.12.2018
reads as under :

" सांख्या-202056/68-4-2018
प्रेषक,

डॉ० प्रभाि कुमार,

अपर मुख्य सतचव,
 उ०प्र० शासन।

सेवा में,

तनदेशक,

सतचव,

रायय शैतक्षक अनुसांिान एवां परीक्षा तनयामक प्रातिकारी,

प्रतशक्षण पररषद, उ०प्र०,
उ०प्र०, इलाहाबाद।

लखनऊ।

बेतसक तशक्षा अनुभाग-4 लखनऊ, तदनाांक 01 तदसम्बर,
2018

तवषयः- "सहायक अध्यापक भिी परीक्षा 2019" के
आयोर्जन हेिु गाइड लाइन्द्स/तदशा तनदेश।
महोदय,

उपयुथक्त तवषयक सतचव, परीक्षा तनयामक
प्रातिकारी के पत्र सांख्या- गोप०/स०अ०भ०प०-10/2155659/2018-10 तदनाांक 01 तदसम्बर, 2018 का सांदभथ ग्रहण
करें, तर्जसके द्वारा "सहायक अध्यापक भिी परीक्षा-2019" के
सांबांि में मागथदशी तसद्धान्द्ि गाइड लाइन्द्स, प्रतिया और समय
साररणी के सांबांि में शासनादेश तनगथि तकये र्जाने का अनुरोि तकया
गया है।

2- इस सम्बन्द्ि में मुझे यह कहने का तनदेश हुआ है
तक शासन द्वारा सम्यक् तवचारोपरान्द्ि उ०प्र० बेतसक तशक्षा पररषद
द्वारा सांचातलि पररषदीय प्राितमक तवद्यालयों में "सहायक अध्यापक
भिी परीक्षा 2019" आयोतर्जि तकये र्जाने हेिु मागथदशी तसद्धान्द्ि,
गाइड लाइन्द्स, प्रतिया और समय साररणी सांलग्न कर तनगथि तकया
र्जािा है।

3- "सहायक अध्यापक भिी परीक्षा 2019"
उ०प्र० बेतसक तशक्षा पररषद द्वारा सांचातलि पररषदीय प्राितमक
तवद्यालयों में सहायक अध्यापक के कुल69000 ररक्त पदों पर भिी
के तलये आयोतर्जि की र्जायेगी। यह परीक्षा मात्र इसी भिी के तलये
ही मान्द्य होगी।

सांलग्नक- यिोपरर।
भवदीय,
ह०अपिनीय
(डा० प्रगति कुमार)
अपर मुख्य सतचव।
सांख्या एवां तदनाांक िदैव-
प्रतितलतप तनम्नतलतखि को सूचनािथ एवां आवश्कयक कायथवाही हेिु
प्रेतषिः-
1- समथि मण्ड्डलायुक्त, उत्तर प्रदेश।
2- समथि तर्जलातिकारी, उत्तर प्रदेश।
3- रायय पररयोर्जना तनदेशक, सभी के तलए तशक्षा पररयोर्जना
पररषद उ०प्र०।
4- तनदेशक, माध्यतमक/बेतसक तशक्षा/साक्षरिा एवां प्रा० तशक्षा
उ०प्र०।
5- अपर तशक्षा तनदेशक, बेतसक/माध्यतमक तशक्षा उ०प्र०
इलाहाबाद।
6- सतचव, बेतसक तशक्षा पररषद उ०प्र० इलाहाबाद।
7- समथि मण्ड्डलीय सांयुक्त तशक्षा तनदेशक उ०प्र०।
8- समथि प्राचायथ, तर्जला एवां प्रतशक्षण सांथिान, उ०प्र०।
9- तशक्षा अनुभाग-5
11- गाडथ िाइल।
आज्ञा से,
ह० अपिनीय
(चन्द्रशेखर)
तवशेष सतचव।"

10. The eligibility for appearing in
ATRE is enclosure to the Government
Order dated 1.12.2018. Age and minimum
qualification
for
appearing
in
such
examination has been specified. This
Government Order also provided for age
relaxation to those candidates, who belong
to reserved categories. Clause 7 (2) specify
that passing of ATRE examination will not
create any right of appointment for the post
of Assistant Teacher as ATRE is only a
qualifying examination. The manner, in
which such examination was to be
conducted was specified in the enclosure to
the Government Order dated 1.12.2018.
There is, however, nothing on record to
show that with reference to the vacancy of
69,000
posts
vertical
or
horizontal
372 INDIAN LAW REPORTS ALLAHABAD SERIES
reservation
was
worked
out. ATRE,
accordingly, was conducted on 6.1.2019
and its result was also declared on
12.5.2020. It is thereafter that a fresh
Government
Order
was
issued
on
16.5.2020 commencing the process of
appointment to the post of 69000 assistant
teachers, as per the provisions of Rules,
1981, as amended from time to time. The
Government Order dated 16.5.2020 reads
as under :

"कायाथलय सतचव
उत्तर प्रदेश वेतसक तशक्षा पररषद, प्रयागरार्ज
पत्राांक वे०तश०प०/778/2020-21 तदनाांक: 16.05.2020
तवज्ञतप्त

शासनादेश सांख्या-344/68-5-2020 तदनाांक
13.05.2020 के अनुिम में उ०प्र० बेतसक तशक्षा पररषि द्वारा
सांचातलि पररषदीय प्राितमक तवद्यालयों में 69000 सहायक
अध्यापकों ही भिी के तलए आयोतर्जि सहायक अध्यापक भिी
परीक्षा-2019 में उत्तीणथ 146060 अभ्यतिथयों में से र्जनपदवार
तनिाथररि पदों की सांख्या (र्जो घट बढ सकिी है) पर चयन/तनयुतक्त
हेिु उ०प्र० बेतसक तशक्षा अध्यापकक्त सेवा तनयमावली-1981
(अद्यिन सांशोतिि) में उतजलतखि प्रातविानों ििा वाांतिि
शैतक्षक/प्रतशक्षण अहथिािारी अभ्यतिथयों से र्जनपद आवांटन हेिु
ऑनलाइन आवेदन पत्र आमांतत्रि तकये र्जािे है।

ऑनलाइन ई-आवेदन पत्र का प्रारूप, आवश्कयक
तदशा तनदेश एवां र्जनपदवार ररतक्तयों का तववरण वेवसाइट
https://upbasiceduboard.gov.in/
पर
तदनाांक
18.05.2020 के अपरान्द्ह से तदनाांक 06.06.2020 सायां 6
बर्जे िक उपलब्ि रहेगा। अभ्यिी द्वारा तदनाांक18.05.2020 के
अपरान्द्ह से तदनाांक 26.05.2020 की रातत्र 12 बर्जे िक
तनिाथररि वेबसाइट पर ऑनलाइन आवेदन पत्र भरा र्जा सकेगा।
अभ्यिी को 69000 सहायक अध्यापकों की भिी हेिु आयोतर्जि
भिी परीक्षा के तलये तनगथि तकया गया अनुिमाांक, र्जन्द्मतिति ििा
मोबाइल सांख्या को तनिाथररि वेबसाइट पर भरना होगा, तर्जसके
उपरान्द्ि आयिी के उक्त मोबाइल पर ओ०टी०पी० (वन टाइम
पासवडथ) प्राप्त होगा, तर्जसे भरने पर ही वह आवेदन पत्र में वाांतिि
प्रतवतष्टयों को पूणथ कर सकेगा। तवशेष रूप से उजलेखनीय है तक
सहायक अध्यापक पद पर तनयुतक्त हेिु अभ्यिी को भिी परीक्षा हेिु
भरे गये आवेदन पत्र की प्रतवतष्टयाां प्रदतशथि हो आयेगी तर्जसमें तकसी
प्रकार का पररविथन नहीं तकया र्जा सकेगा। उक्त के अतिररक्त कतिपय
अन्द्य वाांतिि प्रतवतष्टयों को अभ्यतिथयों द्वारा भरिे हुए आवेदन पत्र
को पूणथ करना होगा। एक बार आवेदन पत्र पूणथ करने के उपरान्द्ि
उसमें तकसी प्रकार का सांशोिन नहीं तकया र्जा सकेगा।

उपयुथक्त सहायक अध्यापक भिी परीक्षा-2019 में
उत्तीणथ अभ्यतिथयों द्वारा मात्र एक ऑनलाइन आवेदन पत्र भरा र्जायेंगा
तर्जसमें अभ्यिी द्वारा प्रदेश के समथि 75 र्जनपदों का तवकजप
अपनी इच्िानुसार वरीयिािम में भरा र्जाना अतनवायथ होगा ििा वह
अपने गुणाांक/भाराांक एवां वरीयिा ििा र्जनपद हेिु तनिाथररि
वगथवार/श्रेणीवार ररतक्तयों के अनुरूप आवांतटि र्जनपद में तदनाांक
03.06.2020 से 06.06.2020 के मध्य आयोतर्जि
काउन्द्सतलांग में प्रतिभाग कर सकेगा। काउन्द्सतलांग में प्रतिभाग करने
का िात्पयथ यह कदातप नहीं है तक वह तनयुतक्त हेिु पात्र है। वाांतिि
अतनवायथ शैतक्षक/प्रतशक्षण योग्यिाओां/वगथ-श्रेणी के सत्यापनोपरान्द्ि
अहथ पाये र्जाने पर अभ्यिी को उनके आवांतटि र्जनपद में तनयुतक्त
प्रदान की र्जायेगी। सरकारी/अद्धथसरकारी/बेतसक तशक्षा पररषद के
अिीन पूवथ से कायथरि अभ्यतिथयों को काउतन्द्सतलांग के समय सक्षम
प्रातिकारी से एन०ओ०सी० प्राप्त कर प्रथिुि करना अतनवायथ होगा।

अभ्यिी को तनयुतक्त हेिु आयोतर्जि काउतन्द्सतलांग में
अपने समथि शैतक्षक/अन्द्य मूल अतभलेखों, उसकी दो सेट एक
प्रमातणि िायाप्रति, चार पासपोटथ साइर्ज िोटोग्राि ििा "सतचव
उ०प्र० बेतसक तशक्षा पररषद प्रयागरार्ज" के पदनाम से तनिाथररि
आवेदन शुजक (सामान्द्य/ओ०बी०सी० हेिु रू० 500, अनुसूतचि
र्जाति/र्जनर्जाति हेिु रू० 200, तवकलाांगों हेिु तनःशुजक का
बैंकराफ्ट लेकर प्रतिभाग करना होगा। तनयुक्त होने वाले
अध्यापक/अध्यातपकाओां का अन्द्िर्जथनपदीय थिानान्द्िरण नहीं तकया
र्जायेगा। अभ्यतिथयों से यह अपेक्षा की आिी है तक सांदभथगि प्रतिया
के सम्बन्द्ि में आवश्कयक तवभागीय तनदेश एवां अन्द्य र्जानकारी हेिु
वेबसाइट https://upbasiceduboard.gov.in/ का
तनिाथररि तितियों के मध्य अवलोकन करिे रहे।

पररषदीय प्राितमक तवद्यालयों में सहायक अध्यापक
के पदों पर चयन/तनयुतक्त बेतसक अध्यापक सेवा तनयमावली-
1981 (अद्यिन यिा सांशोतिि) ििा तवद्यालयों में पदथिापन की
कायथवाही अध्यापक िैनािी तनयमावली- 2008 (अद्यिन यिा
सांशोतिि) के अनुसार की र्जायेगी।"

सतचव
उ०प्र० बेतसक तशक्षा पररषद, प्रयागरार्ज"

11. Since the Cadre of Assistant
Teacher under Rules, 1981 is a District
Level Cadre sub divided into rural area and
urban area, therefore, posts in respect of
5 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
373
different districts were specified with
reference to the category of posts and
applications
were
invited.
The
advertisement was published on 17.5.2020.
Online applications could be filled from
18.5.2020 and the last date for filling up
such application was 26.5.2020 at 12.00
PM. The instructions appended to the
Government
Order
dated
16.5.2020
provided that the candidate had to fill his
registration number and roll number of
ATRE examination whereafter information
in clauses 1 to 12 was to be auto filled and
only
remaining
clauses
relating
to
preference etc had to be filled online. At
this juncture, we may also note that in the
advertisement,
initially
published
on
17.5.2020, the eligibility date was specified
as the date of holding of ARTE. Clause
1(6) of the advertisement is reproduced in
this regard :

"(VI) अहभता कतकथ- अभ्यथी िे समस्त शैकिि
अंि पत्र/प्रमाण पत्र तथा अन्य अकर्लेखों िा किधाभरण सहायि र्ती
परीिा हेतु प्रिाकशत कवज्ञापि िी कतकथ से होिा।"

12. The aforesaid clause, however,
was amended in the modified guidelines
issued
for
recruitment
later.
The
appointment to the posts of Assistant
Teacher was to be made on the basis of
quality
points
marks
wherein
60%
weightage was to be given to the marks
secured in ATRE, whereas 10% weightage
each was to be given for High School,
Intermediate, Graduation and training.

13. Since no examination was to be
conducted pursuant to the advertisement
issued on 17.5.2020 and the selections were
to be made only on the basis of quality
points
marks,
as
such
the
online
applications made by the candidates were
processed and ultimately the results were
declared on 1.6.2020.
14. First writ petition seeking
reservation for EWS quota came to be filed
by one Shivam Pandey being Writ A No.
4063 of 2020. Subsequent writ petitions
were also filed from time to time up to the
year 2024. All the writ petitions have been
decided by the impugned judgment.

15. The limited issue involved in the
present bunch of Special Appeals is with
regard to applicability of EWS reservation
in the recruitment to 69,000 post of
assistant teachers. Other aspects relating to
criteria for selection/appointment etc need
not detain here. Appointments were offered
to 31,277 candidates on 11.10.2020, 36,590
candidates 30.11.2020. Last list of selected
candidates was published on 5.1.2022
consisting of 6,800 reserved category
candidates.

16. The select list of 5.1.2022 came to
be challenged before the Lucknow Bench
of this Court in the case of Mahendra Pal
and Others vs. State of U.P. and others,
which has been decided by the learned
Single Judge vide judgment reported in
2023 (3) ADJ 496. Controversy before
learned Single Judge did not relate to EWS
reservation. The judgment of the learned
Single Judge has been reserved in Special
Appeal No. 172 of 2023 along with other
connected matters. A direction is issued by
the Division Bench to redraw the select list.
This judgment of Division Bench has been
assailed before the Supreme Court in Ravi
Kumar Saxena vs. State of U.P. and
others, SLP Diary No. 38554 of 2024, and
direction for redrawing of the list, pursuant
to the judgment of the Division Bench, has
been kept in abeyance.

17. At this stage, we may also note
that another bunch of writ petitions earlier
came to be decided by the Lucknow Bench
374 INDIAN LAW REPORTS ALLAHABAD SERIES
in Raghvendra Pratap Singh vs. State of
U.P. and others, 2020 (4) ADJ 490 (LB),
wherein the Government Order dated
7.1.2019 specifying minimum marks for
passing ATRE was assailed. It was argued
that ATRE was already conducted on
6.1.2019 and, therefore, any subsequent
prescription of minimum marks was
impermissible. This plea was repelled by
the Division Bench in which observations
were also made with regard to the
commencement of recruitment process.
Paragraph 65 and 66 of this judgment is
relied upon by the appellants, which are
reproduced hereunder :

"(65) From perusal of 1981
Rules, as amended, makes it crystal clear
that ATRE is only a qualifying examination
and not a part of the recruitment process.
The benefit of Anand Kumar Yadav (supra)
shall be available to the Shiksha Mitras
only during the process of recruitment
which will start once they qualify ATRE by
scoring the prescribed qualifying marks
and until they do so, they cannot stake a
claim to such weightage. The statutory
guidelines for conducting second ATRE -
2019 issued on 1.12.2018 makes it clear that
the ATRE is only a minimum qualification
and by qualifying ATRE, no candidate shall
stake a claim for appointment on the post of
Assistant Teacher.

(66) The exercise of holding the
ATRE - 2019 is just for attaining of eligibility
in order to be able to apply and to be
considered for recruitment, a stage which has
not yet been initiate because after declaration
of the result ATRE - 2019, on the basis of
minimum marks, as mentioned in the
Government Order dated 7.1.2019, the result
would be declared."

18. The Division Bench judgment
of Lucknow Bench in Raghvendra Pratap
Singh (Supra) has been affirmed by the
Supreme Court with dismissal of the SLP
filed against it.

19. Learned Single Judge having
considered the claim of the appellants came
to the conclusion that recruitment process had
commenced with issuance of advertisement
on 17.5.2020. However, the benefit of EWS
reservation has been denied on the ground
that U.P. Act No. 10 of 2020 came to be
enacted later, on 31.8.2020. Learned Single
Judge has also opined that the fact that UP
Act No. 10 of 2020 has been made effective
from 18.2.2019 would not be of any help to
the appellants cause inasmuch as it has
merely protected the action already taken
pursuant to the notification issued on
18.2.2019. Learned Single Judge, therefore,
has dismissed the writ petitions holding that
State was not obliged to provide for
reservation under EWS quota since process
of recruitment had already commenced on
17.5.2020; whereas UP Act No.10 of 2020
got enforced on a subsequent date.

20. Learned Senior Advocates for
the appellants argue that learned Single
Judge has erred in holding that EWS
reservation can be enforced/implemented
vide UP Act No.10 of 2020 w.e.f.
31.08.2020. It is asserted that provision for
EWS reservation was already implemented
pursuant to the 103rd Constitutional
Amendment vide office memorandum
dated
81.2.2019
and
since
the
Act
otherwise was given retrospective effect, as
such the interpretation of the learned Single
Judge holding the EWS reservation of not
to be applicable in the recruitment in
question is not based upon the correct
interpretation of the statutory scheme.

21. Learned Senior Counsel further
argues
that
the
commencement
of
5 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
375
recruitment in question is by way of
advertisement published on 17.5.2020, by
when the EWS reservation was already
introduced. It is further contended that the
State was under a positive obligation to
provide for EWS reservation and since
such reservation has been denied, as such
the petitioners are entitled to the issuance
of writ mandating the State to extend EWS
reservation in the recruitment in question.

22. On behalf of the respondents,
Sri Kushmondeya Shahi, submits that the
recruitment rules have been amended vide
22nd Amendment Rules of 2018, wherein
Rule 2(w)(x) have been added, which is
reproduced hereinafter:-

"(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."

23. It is then urged that the
advertisement issued for appointment to
69000 post dated 17th May, 2020 is in
continuation to the process of recruitment
initiated vide government order dated
1.12.2018,
wherein
Assistant
Teacher
Recruitment Examination was held to fill
up to 69000 post. It is submitted that the
advertisement for appointment on the post
of Assistant Teacher is also in respect of
69000 post. Sri Shahi also places reliance
upon 23rd Amendment, made to the Rules
of 1981, which has been made effective
from
1.1.2018.
He
submits
that
commencement of recruitment ought to be
treated
as
1.12.2018
when
ATRE
examination was initiated.

24. Reliance is placed upon Rule
14(1) to submit that the procedure of
selection commences with determination of
vacancy followed with holding of Assistant
Teacher Recruitment Examination and the
mere fact that a subsequent advertisement
was issued for recruitment on 17.5.2020 it
would not mean that the recruitment
commences
only
with
issuance
advertisement dated 17.5.2020.

25. Sri Shahi, also places reliance
upon the instructions issued by the Office
alongwith advertisement dated 17.5.2020 to
show that the candidates were required to
fill up registration number and roll number
of ATRE examination alongwith mobile
number of candidate and that the details
furnished in ATRE examination is relied
upon for recruitment for the post in
question. Clause 2 and 3 of the instructions
issued
alongwith
advertisement
dated
17.5.2020 is reproduced hereinafter:-

"2. िदपश्चाि् सहायक अध्यापक भिी 2019
तलतखि परीक्षा हेिु तनगथि अनुिमाांक, र्जन्द्मतिति एवां मोबाइल नां०
(र्जो सहायक अध्यापक भिी तलतखि परीक्षा 2019 ऑनलाइन
आवेदन में अांतकि तकया गया हो) पर प्राप्त OTP की सहायिा से
लॉतगन करेगें।

3. लॉतगन होने के पश्चाि् अभ्यिी को ऑनलाइन
आवेदन के िामथ में िम सां० 1 से 13 िक सहायक अध्यापक भिी
तलतखि परीक्षा 2019 हेिु आनलाइन आवेदन में अांतकि
प्रतवतष्टयााँ, अभ्यिी की िोटो सतहि प्रदतशथि होगी। प्रदतशथि प्रतवतष्टयों
में अभ्यिी द्वारा तकसी भी प्रकार का सांशोिन तकया र्जाना सम्भव
नहीं होगा।"

26. Sri Shahi also places reliance
upon the supplementary counter affidavit
filed by the Secretary of the Basic Shiksha
Parishad, wherein following assertions are
376 INDIAN LAW REPORTS ALLAHABAD SERIES
made in paragraph 4 and 5 of the affidavit.
A chart has also been annexed alongwith
such affidavit at page 7, which is
reproduced hereinafter:-

"4. That pursuant to the select
list total 34589 candidates belongs to
unreserved category were appointed and
18598 candidates belongs to OBC were
appointed. It is relevant to point out here
that total 15623 candidates belongs to SC
and 190 candidates belongs to ST category
were appointed. The details of the breakup
of the appointments are being filed as
Annexure No. 1 to this affidavit.

5. That out of 69000 vacancies all
the posts advertised on 17.05.2020 have
been filled up and no posts are vacant in
any of the category. On the basis of the
facts and circumstances stated in the
preceding
paragraphs
the
present
supplementary counter affidavit may kindly
be taken on record.

क्र०
सं०
श्रेर्ी एवं आरिर्वार
पद
चयननत अभ्यर्ी का वववरर्
01
अनारक्षित (34589
पद)
20301 सामान्य श्रेर्ी
12630 अन्य वपछड़ा वगत
1637 अनुसूथचत जानत
21 अनुसूथचत जनजानत
उपरोक्त अभ्यर्ी अनारक्षित
के पद के सापेि चयननत हुए
है।
02
अन्य वपछड़ा वगत
(18598 पद)
18598
03
अनुसूथचत जानत
(14459 पद)
15623
1164 अनुसूथचत जनजानत
के ररक्त पदों को अनुसूथचत
जानत के अभ्यथर्तयों द्वारा
भरा गया।
04
अनुसूथचत जनजानत
(1354 पद)
190

27. On the strength of such
affidavit, Sri Shahi submits that all 69000
vacancies have since been filled and as
none of the selected candidates have been
impleaded as a party, nor anybody's
appointment is challenged, as such, even if
the claim of appellants are accepted on
merits, yet no relief can be granted to them.

28. Sri Shahi also argues that most
of the appellants before this Court in this
bunch
of
appeals
possess
B.Ed.
Qualification and do not possess requisite
qualification in terms of the NCTE
guidelines. Reliance is placed upon the
judgment of the Supreme Court in Devesh
Sharma Vs. Union of India and others,
(2023) 18 SCC 339 and Navin Kumar and
others Vs. Union of India and others, 2024
SCC OnLine SC 2360 to submit that such
candidates are otherwise ineligible for
appointment.

29. In reply to such submission, Sri
Khare appearing for the appellants argues
that the writ petition of Shivam Pandey was
filed in the year 2020 itself and there was
no delay on part of appellants in
approaching this Court. He further submits
that any subsequent circumstance which
may arise would not constitute any valid
basis
to
deny
consideration
to
the
appellants' claim for grant of EWS
reservation
pursuant
to
103rd
Constitutional Amendment. It is also
submitted that equities are liable to be
adjusted by the Court and in such
circumstances,
if
vacancies
are
not
available, a direction can be issued to
adjust candidates of EWS category against
unadvertised vacancy.

30. We have heard Sri Ashok
Khare, learned Senior Counsel assisted by
Sri Umang Srivastava, Advocate; Sri R.K.
5 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
377
Ojha, learned Senior Counsel assisted by
Sri Navin Kumar Sharma and Sri Agnihotri
Kumar Tripathi, Advocates; Sri Seemant
Singh, learned counsel for the appellants;
Sri Kushmondeya Shahi, learned counsel
for the respondents; learned Standing
Counsel for the State and have perused the
materials on record.

31. EWS reservation came to be
introduced in the Constitution vide 103rd
Constitutional
Amendment
Act,
2019
which is extracted hereinafter:-

"THE CONSTITUTION (ONE HUNDRED
AND THIRD
AMENDMENT) ACT, 2019
[12th January, 2019.]

An Act further to amend the
Constitution of India.

BE it enacted by Parliament in
the Sixty-ninth Year of the Republic of
India as follows:-

1. (1) This Act may be called the
Constitution (One Hundred and Third
Amendment) Act, 2019.

(2) It shall come into force on
such date as the Central Government may,
by notification in the Official Gazette,
appoint.

2.
In
article
15
of
the
Constitution, after clause (5), the following
clause shall be inserted, namely:- \

'(6) Nothing in this article or subclause (g) of clause (1) of article 19 or
clause (2) of article 29 shall prevent the
State from making,-

(a) any special provision for the
advancement of any economically weaker
sections of citizens other than the classes
mentioned in clauses (4) and (5); and

(b) any special provision for the
advancement of any economically weaker
sections of citizens other than the classes
mentioned in clauses (4) and (5) in so far
as such special provisions relate to their
admission
to
educational
institutions
including private educational institutions,
whether aided or unaided by the State,
other
than
the
minority
educational
institutions referred to in clause (1) of
article 30, which in the case of reservation
would be in addition to the existing
reservations and subject to a maximum of
ten per cent. of the total seats in each
category.

Explanation.-For the purposes
of this article and article 16, "economically
weaker sections" shall be such as may be
notified by the State from time to time on
the basis of family income and other
indicators of economic disadvantage.'.

3.
In
article
16
of
the
Constitution, after clause (5), the following
clause shall be inserted, namely:-

"(6) Nothing in this article shall
prevent the State from making any
provision
for
the
reservation
of
appointments or posts in favour of any
economically weaker sections of citizens
other than the classes mentioned in clause
(4), in addition to the existing reservation
and subject to a maximum of ten per cent.
Of the posts in each category."

32. The 103rd amendment made in
Article 15 of the Constitution of India
permitted the States to provide for EWS
reservation. The explanation to Clause 5 of
Article 15 specifies that EWS reservation
shall be such as may be notified by the
State, from time to time, on the basis of
family income and other indicators of
economic disadvantage. It is pursuant to
this power that the State has issued office
memorandum dated 18.2.2019 providing
for 10% reservation for the EWS category
candidates in public employment offered
by the State of U.P.
378 INDIAN LAW REPORTS ALLAHABAD SERIES
33. In the context of submissions
advanced at the Bar following questions
arise for our consideration in this bunch of
appeals:

(i)
What
is
the
date
of
introduction of EWS reservation in the
State of U.P. i.e. is it 18.2.2019 or
31.8.2020?

(ii)
What
is
the
date
of
commencement of recruitment for the
purposes
of
applicability
of
EWS
Reservation?

(iii)
Whether
appellants
are
entitled to any relief

34. Learned Single Judge has held
that
EWS
Reservation
will
not
be
applicable in the facts of the present case,
inasmuch as, U.P. Act No. 10 of 2020 was
notified only on 31st August, 2020;
whereas the recruitment commenced prior
to it. It has also held that the circular issued
by the State Government on 18.2.2019 and
13.8.2019 would not have the effect of
introducing EWS Reservation in the State
when no such statutory provision existed
for the purpose.

35. The State of U.P. first issued
office memorandum for the purpose on
18.2.2019 and later introduced legislation
for the purpose with retrospective effect,
clearly protecting office memorandum
dated 18.2.2019. Measures taken by the
State of U.P. to introduce EWS reservation
by exercising its executive power and then
clothing it with legislative cover is clearly a
permissible course in the eyes of law.

36. U.P. Act No. 10 of 2020 came
to be enacted by the State Legislature for
giving
effect
to
reservation
for
economically weaker sections pursuant to
103rd Constitutional Amendment. Section
1(1) has already been extracted in para 3 of
this judgment, which clearly shows that the
Act is to come into force on February 1,
2019. Section 3(3) & (4) have also been
extracted above which clearly show that the
office memorandum dated 18.2.2019 shall
be deemed to have been issued under the
Act. The subsequent office memorandum
dated 13th August, 2019 is also treated to
have been issued under U.P. Act No. 10 of
2020. Once that be the position, it would be
difficult for this Court to accept that the
EWS reservation will commence from
31.8.2020 and not from 18.2.2019 when
office memorandum was issued by the
State providing for EWS reservation in
employment of State.

37. Law is well settled that
appropriate
legislature
can
always
introduce legislation with retrospective
effect. We may also note that by 103rd
Constitutional
Amendment
enabling
provision was made for the States to
provide for reservation to EWS candidates.
It is well settled that executive powers of
State is co-extensive with its legislative
power.
Once
provision
for
EWS
reservation was made available to the State
by
virtue
of
103rd
Constitutional
Amendment it was open for the State to
implement EWS reservation either by
making legislation or by issuing executive
instructions.

38. Article 162 of the Constitution
of India provides for the extent of executive
power of State. Article 162 of the
Constitution
of
India
is
reproduced
hereinafter:-

"Subject to the provisions of this
Constitution, the executive power of a State
shall extend to the matters with respect to
which the Legislature of the State has
5 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
379
power to make laws:Provided that in any
matter
with
respect
to
which
the
Legislature of a State and Parliament have
power to make laws, the executive power of
the State shall be subject to, and limited by,
the executive power expressly conferred by
the Constitution or by any law made by
Parliament upon the Union or authorities
thereof."

39. Hon'ble Supreme Court in
Assn. of Medical Superspeciality Aspirants
& Residents v. Union of India, (2019) 8
SCC 607 : 2019 SCC OnLine SC 1055 at
page 622 has clarified the law on this
aspect in following words:-