# State of U.P. and others v. Anant Kumar Tiwari and others

- **Citation:** (2002) 3 ILRA 942
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-23
- **Case number:** Special Appeal No. 404 of 2002
- **Bench:** S.K. Sen, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-anant-kumar-tiwari-and-others-40040
- **Pages:** 40

## Headnote

Constitution
of
India,
Article
226-
Appointment of Special B.T.C. Teacher-
candidate
being
B.
Ed./LT
applied-
persuent to advertisement providing
preparation
of
list
on
state
leval-
subsequently during election process- by
amended
G.O.
prescribed
mode
of
preparation of selected list - on District
wise- after declaration of result validity
http://www.allahabadhighcourt.nic.in
3 All] State of U.P. and others V. Anant Kumar Tiwari and others 943
of selection challenged - preliminary
objection-
in
absence
of
selected
candidate the writ petition liable to
dismissed-
held
objection
can
not
sustained- according to own statement
of the Chief Standing Counsel- No
appointment letter has been issued-
secondly-
non
selected
candidate-
challenging the validity of subsequent
G.O. by which the list has been prepared
District wise- and not the mode of
selection-
writ
petition
held
maintainable.

Held- para 24 and 28

However, we are of the view that even
though they were not made a party in
the writ petitions, but we have given
some of the selected candidates leave to
appeal against the order passed by the
learned Single Judge and we have heard
them at length. Thus, we are not inclined
to
non-suit
the
writ
petitioners-
respondents and instead looking to the
importance of the matter proceeded to
decide on merits.

In
the
present
case
as
already
mentioned hereinbefore the criteria for
preparation of merit list was earlier fixed
as State level, which was subsequently,
changed to the District level much after
the
last
date
of
submitting
the
applications form. The respondent writ
petitioners are aggrieved by the change
of preparation of the merit list from
State level to District level. Thus, it
cannot be said that the respondent writ
petitioners were made aware about the
preparation of merit list at District level
upto the last date of submitting their
applications form.
Case law discussed:
AIR 1982 SC 1555
AIR 1985 SC-167
1994 (6) SCC-320
1995 SCC-319,
1998 (2) SCC-32
JT 2001 (5) SC -42
JT 2001
AIR 1984 SC -251
JT 2002 (2) SC-191
Constitution of India, Article 15 (3), 16
(2)-
Appointment
of
Special
BTC
Teacher- 50% vacancy reserved for
women,
50%
for
male
candidate-
including 50% for science candidate and
50% for art candidates - ca not be held
arbitrary.

Held- para 42

We are of the view that the reservation
made by the State Government for 50%
female candidates for imparting special
B.T.C. training cannot be said to be
illegal
or
arbitrary.
These
females
candidates are to be selected against
their respective categories and thus, the
reservation is only horizontal and not
vertical. The provisions for selecting
50% candidate against their respective
categories is permissible in view of the
provisions made under Article 15 (3) of
the Constitution of India. Taking into
consideration the need of Arts and
Science subject, the provisions made for
50% Art candidates and 50% science
candidates
cannot
be
said

## Text

_Characters 0–39,859 of 134,366. This is a partial read: ask again with offset=39859 for what follows._

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942 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
bar where a writ petition has been filed
alleging violation of principle of natural
justice. It is not necessary to refer and to
discuss the various decisions relied upon
by Shri V.B. Singh, learned Senior
Counsel in regard to raising the plea of
alternative remedy. Thus the preliminary
objection raised by Shri V.B. Singh,
learned
Senior
Counsel
cannot
be
sustained.

9. So far as the question that a
second show cause notice is not required
or the copy of the enquiry report is not to
be given or before the Labour Court the
Employer has a right to adduce evidence
to prove the charges where the domestic
enquiry is held to be improper is
concerned, suffice is to mention here that
the learned Single Judge has simply set
aside the order of termination on the
ground that the same have been passed in
a hasty manner without even considering
the reply which was sent by the
respondent writ petitioners no.1 by
registered post on 26.11.87 immediately
the next day of receiving the show cause
notice. The Court has not prohibited the
Employer from considering the reply and
passing an order afresh in accordance
with law. So far as the respondent writ
petitioners no.2 is concerned we find that
there is no material on record to show that
he was given any opportunity or any show
cause notice, but straight away the order
of termination has been passed and
published in the news paper. The entire
action in passing the order of termination
was taken in a haste and in an arbitrary
manner. The appellant being a State is
expected to act in a just and reasonable
manner. Since we have held that the
impugned order of termination has been
passed in gross violation of the principles
of natural justice and in a hasty manner
and the writ petition was maintainable, it
is not necessary to refer to the various
decisions cited by Sri V.B. Singh
regarding the necessity of giving second
show cause notice and the right of the
employer to adduce evidence before the
Labour Court to justify the punishment.

In view of the foregoing discussions,
we do not find any merit in this Special
Appeal and it is hereby dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD NOVEMBER 23, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 404 of 2002

State of U.P. and others
...Applicants
Versus
Anant Kumar Tiwari and others

 ...Respondents

Counsel for the Appellants:
Sri R.N.Singh
Sri A.P. Shahi
Sri P.S. Baghel
Sri M.D. Singh Shekhar
Sri K.R. Singh
Sri Ashok Mehta
Sri U.N. Pandey

Counsel for the Respondent:
Sri Shailendra

Constitution
of
India,
Article
226-
Appointment of Special B.T.C. Teacher-
candidate
being
B.
Ed./LT
applied-
persuent to advertisement providing
preparation
of
list
on
state
leval-
subsequently during election process- by
amended
G.O.
prescribed
mode
of
preparation of selected list - on District
wise- after declaration of result validity
http://www.allahabadhighcourt.nic.in
3 All] State of U.P. and others V. Anant Kumar Tiwari and others 943
of selection challenged - preliminary
objection-
in
absence
of
selected
candidate the writ petition liable to
dismissed-
held
objection
can
not
sustained- according to own statement
of the Chief Standing Counsel- No
appointment letter has been issued-
secondly-
non
selected
candidate-
challenging the validity of subsequent
G.O. by which the list has been prepared
District wise- and not the mode of
selection-
writ
petition
held
maintainable.

Held- para 24 and 28

However, we are of the view that even
though they were not made a party in
the writ petitions, but we have given
some of the selected candidates leave to
appeal against the order passed by the
learned Single Judge and we have heard
them at length. Thus, we are not inclined
to
non-suit
the
writ
petitioners-
respondents and instead looking to the
importance of the matter proceeded to
decide on merits.

In
the
present
case
as
already
mentioned hereinbefore the criteria for
preparation of merit list was earlier fixed
as State level, which was subsequently,
changed to the District level much after
the
last
date
of
submitting
the
applications form. The respondent writ
petitioners are aggrieved by the change
of preparation of the merit list from
State level to District level. Thus, it
cannot be said that the respondent writ
petitioners were made aware about the
preparation of merit list at District level
upto the last date of submitting their
applications form.
Case law discussed:
AIR 1982 SC 1555
AIR 1985 SC-167
1994 (6) SCC-320
1995 SCC-319,
1998 (2) SCC-32
JT 2001 (5) SC -42
JT 2001
AIR 1984 SC -251
JT 2002 (2) SC-191
Constitution of India, Article 15 (3), 16
(2)-
Appointment
of
Special
BTC
Teacher- 50% vacancy reserved for
women,
50%
for
male
candidate-
including 50% for science candidate and
50% for art candidates - ca not be held
arbitrary.

Held- para 42

We are of the view that the reservation
made by the State Government for 50%
female candidates for imparting special
B.T.C. training cannot be said to be
illegal
or
arbitrary.
These
females
candidates are to be selected against
their respective categories and thus, the
reservation is only horizontal and not
vertical. The provisions for selecting
50% candidate against their respective
categories is permissible in view of the
provisions made under Article 15 (3) of
the Constitution of India. Taking into
consideration the need of Arts and
Science subject, the provisions made for
50% Art candidates and 50% science
candidates
cannot
be
said
to
be
arbitrary.
Case law discussed.
AIR 1995 SC-1948
1995 (5) SCC-173
1996 (9) SCC-466
1992 (suppl) (3) SCC-217

Constitution of India, Article 15 (i) 16
(2)- Recruitment of Special BTC teacher-
action of Government ;change of mode
of
preparation
of
merit
list-
from
statewise to District wise - whether can
be said arbitrary. Held ' Yes'.

Held para 58

Applying the principles laid down by the
Apex Court in the aforementioned cases
to the present case, we find that
restricting the selection and preparation
of merit list at the District level are not
at all be justified and it amounts to
discrimination.
In
the
present
case
taking into consideration the exigencies
the State Government had decided to
prepare the merit list at the State level
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944 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
and for restoring it to District level the
reasons
advanced
by
the
State
Government are irrelevant. Thus, the
action of the State in restoring the
preparation of merit list from State level
to District level is arbitrary and is
violative of Article 15 (1) and 16 (2) of
the Constitution of India.

U.P.Basic Education (Teachers) Service
Rules 1981 rule 8 read with National
Council of Teachers Education 1993
Required qualification- special B.T.C.
teacher- whether can the B.Ed. CP Ed be
treated equivalent to B.T.C. ? held 'No'
No declearation has been made by the
Government.

Held- para 70

The recognition of Special B.T.C. training
course as equivalent qualification the
course
having
been
not
recognized/approved by the National
Council of Teacher Education could not
have
been
done
by
the
State
Government.
Thus,
the
Government
order recognizing special B.T.C. training
course as equivalent qualification is
contrary to the provisions of the Act, the
Rules and also the 1993 Act.

(Delivered by Hon'ble R.K. Agarwal, J.)

1. Special Appeal No. 404 of 2002
has been filed by the State of U.P. through
Secretary, Education, U.P. Government,
Lucknow, Director, State Council of
Educational
Research
and
Training
Lucknow
and
the
Director,
Basic
Education, U.P. while the special appeal
no. 365 of 2002, has been filed by District
Basic Teachers Kalyan Samiti and three
others after obtaining leave to appeal and
the remaining special appeals have been
filed by the selected candidates after
obtaining leave to appeal against the
judgment and order of the learned Single
Judge dated 21.3.2002 passed in Civil
Misc. Writ Petition No. 37124 of 2001,
Anant Kumar Tiwari and others v. State
of U.P. and others and other connected
writ petitions, whereby the learned single
Judge had allowed all the writ petitions
and had quashed the Government orders
dated 3.8.2001, the advertisement dated
14.8.2001.
Government
order
dated
3.12.2001 and the process of selection,
pursuant thereto at whatever stage it had
reached before passing of the interim
order dated 9.11.2001 and 3.12.2001.
The learned Single Judge has held that the
Government order dated 3.8.2001 and the
proportion of selection in pursuance
thereto at whatever stage it has reached is
perrse,
arbitrary,
discriminatory
and
violative of Articles 14,15,16 and 21 of
the Constitution of India, apart from the
same being contrary to the U.P. Basic
Education Act 1972 and U.P. Basic
Education (Teachers) Service Rules 1981
and cannot be upheld.

2. We have heard the learned
Advocate General, Sri R.N. Singh,
learned Senior Counsel assisted by Sri
A.P. Shahi, Sri P.S. Baghel and Sri M.D.
Singh Shekhar for the appellants and Sri
Shailendra, learned counsel appearing for
the respondent- writ petitioners.

3. Briefly stated the facts giving rise
to the present special appeals are as
follows :

4. In the primary schools run by the
U.P. Basic Education Board (hereinafter
referred to as the Board) in the State of
U.P. for the last several years there had
been a shortage of teachers, as a result of
which the State Government was finding
it difficult to fulfil its obligations as
mandated
by
Article
45
of
the
Constitution of India to provide free and
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3 All] State of U.P. and others V. Anant Kumar Tiwari and others 945
compulsory education for all children
until they complete the age of 14 years. It
appears that in the State of U.P., the State
Government runs a training college in
each district, which is at present about 70
in number, where the persons are given
training in teaching and on successful
completion thereof are awarded Basic
Teacher's Certificate (hereinafter referred
to as B.T.C.). As per the statement made
by the learned Advocate General, in each
of the training college, the intake is of
only 100 persons in a year. Thus, only
about 5000 to 6000 qualified B.T.C.
teachers are available for being appointed
as assistant teachers to teach students in
primary school run by the Board in the
State
of
U.P.
Whereas
the
total
requirement of teachers at present is more
than 50,000. To fulfill its constitutional
obligations the State Government took a
policy decision to impart two month's
special training to those persons, who
have done their B.Ed./L.T. The decision
taken by the State Government, which
was
accorded
permission
by
the
Government manifested itself in the
Government Order dated 3.8.2001. It
mentions that the Governor has been
pleased to accord permission for the
appointment
of
20,000
B.Ed./L.T.
qualified and selected candidates on the
vacant posts of assistant teachers in the
primary schools run by the Board after
they complete two months special B.T.C.
Training and are found successful in the
examination. The detailed procedure for
making of application and selection was
also prescribed by the aforementioned
Government Order. It provided for
determination of vacancies district wise
and the candidates concerned will be
eligible to make an application only
against the vacancies available in their
home districts. A candidate shall apply
only for the home district and if he makes
an application for two and more district,
such application shall be rejected. No
certificate was to be produced at the time
of verification. No written examination
was to be conducted for the selection. The
criterion for the selection was the quality
point marks obtained in the various
examinations passed by the candidates to
be determined in the manner given in the
said Government Order. It also provided
that the selection will be made on the
basis of the district wise merit list
prepared on the basis of the total quality
point
marks.
The
reservation
was
provided
inaccordance
with
the
reservation
policy
of
the
State
Government. However, it was provided
that care shall be taken that 50%
candidates of the prescribed limit are
selected from the Science group and 50%
from the Arts group and besides it 50%
males and 50% females will be selected in
the respective categories against the
prescribed number. The maximum and
minimum age was fixed at 35 and 18
years as on 1st July of the year following
the year of notification of vacancy with
the relaxation of five years in the case of
Schedule
Caste,
Schedule
Tribe,
Backward classes and the dependant of
freedom fighters and three years in the
case of ex-serviceman in the upper age
limit. The selected candidates were
required to undergo a two months special
B.T.C. training after which they have to
appear in an examination. The selected
candidates will be eligible for the
appointment only after passing of the
examination. The candidates, who have
completed special B.T.C. successfully,
shall be treated at par with B.T.C. general
trained and shall be treated as eligible for
appointment to the vacant posts of
assistant teachers in primary schools. The
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946 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
said Government Order also provided for
appointment of the trained applicants by
making
provision
that
who
had
successfully completed the training course
shall be given appointment in the
concerned district and in the primary
schools against the limit of sanctioned
post, which are located in far flung areas
and where they are actually needed. The
aforesaid
Government
Order
was
subsequently
modified
by
another
Government
order
dated
20.8.2001,
whereby the candidates having C.P.Ed.,
D.P.Ed., and B.P.Ed. Training as regular
students from the Universities, College
and Training College recognised and run
by the State Government, were also made
eligible to put up application for special
B.T.C. training besides B.Ed./ L.T.
candidates and the maximum age limit for
special B.T.C. training was substituted by
40 years retaining the relaxation of age of
5 years and 3 years. By the Government
order dated 2.8.2001, the last date of
receipt of application was also changed
and instead of 15.9.2001, the last date was
fixed as 29.9.2001.

It appears that on re-consideration,
the State Government decided to prepare
a merit list at the State level. Accordingly,
a Government Order dated 14.9.2001 was
issued by which it was provided that a
merit list of all the applications received
will be prepared on the basis of quality
point of the educational and other
qualifications in accordance with the
provisions given in the Government Order
at the State level, which was to be
prepared in proportion to the total
vacancies for training. The list was to be
arranged district wise in conformity with
the vacancies available in the district and
a provision of reservation as per the rules
was to be ensured. The candidates on the
merit list were to be allotted in order of
merit the candidate of home district,
another post of the division wherein home
district is located and nearest district to
the
home
district
division
to
the
candidates where the vacancy is available.
However, on 31.10.2001, the State
Government issued another Government
Order by which the earlier Government
Order dated 14.9.2001, was amended and
once again the merit list of all the
applications received was to be prepared
on the basis of quality point marks and
other qualifications in accordance with
the provisions given in the Government
Orders
at
the
district
level.
The
advertisement inviting applications for
special B.T.C. training was published in
the daily newspaper. The relevant portion
of the advertisement reads as follows:

"PRADESH MEIN SANCHALIT
VISHVAVIDYALON,
MAHAVIDYALAYON TATHA RAJYA
SARKAR
DWARA
SANCHALIT
MAHAVIDYALAYON
SE
SANSTHAGAT
PRASHKISHIT
B.ED./L.T.
ABHARATHION
SE
UTTAR PRADESH BASIC SHIKSHA
PARISHAD
DWARA
SANCHALIT
GRAMIN KSHETRA KE PRATHMIK
VIDYALAYON
MAIN
SAHAYAK
ADHYAPAKO
KE
PADON
PAR
NIUKTI KE LIYE VISHISHT B.T.C.
PRASHIKSHAN
HETU
ABHYARTHION
SE
AAWEDAN
PARTA
AMANTRIT
KIYE
JATE
HAIN."

5. A corrigendum was also issued
and published in the newspaper of
22.9.2001, regarding preparation of list
State wise and the extension of the last
date of the application. According to the
respondent-writ petitioners, they had
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3 All] State of U.P. and others V. Anant Kumar Tiwari and others 947
applied on the basis of the corrigendum,
which provided for preparation of merit
list State wise. However, with the change
in criteria of preparation of merit list from
State wise to district wise pursuant to the
Government order dated 31.1.2001, their
names did not find place in the merit list
of their home district and therefore, being
aggrieved have approached this Court by
invoking the jurisdiction under Article
226 of the Constitution of India.

6. Before the learned Single Judge,
the grounds of challenge was two foldfirstly, the preparation of merit list district
wise was arbitrary and violative of
Articles
14,15,16
and
21
of
the
Constitution of India. It was also contrary
to the provisions of the U.P. Basic
Education Act, 1972 (hereinafter referred
to as the Act) and the U.P. Basic
Education (Teacher) Service Rules 1981
(hereinafter referred to as the Rules).
Secondly, the reservation to the extent of
making selection of 50% males and 50%
females against the prescribed number
and 50% candidate from the Science
group and 50% from the Arts group is
arbitrary
and
violative
of
Articles
14,15,16 and 21 of the Constitution of
India. The respondents writ petitioners
also raised the plea of arbitrariness in
preparation of merit list giving specific
instances wherein non qualified persons
have been included in the merit list and
even though in some of the districts there
was no vacancy, some vacancies have
been transferred from adjoining district to
accommodate the favoured persons. The
State respondents on the other hand
vehemently
opposed
the
plea
of
discriminations or violation of any of the
provisions
of
the
Constitution
and
submitted before the learned Single Judge
that the respondent-writ petitioners, who
have
participated
and
remained
unsuccessful
cannot
challenge
the
impugned advertisement and the selection
by filing the present writ petition, the
Government has taken a policy decision
of recruitment and appointment of such
persons, who possessed the qualifications
as mentioned in the advertisement, which
cannot be open to challenge being the
policy decision, the successful candidates
have not been impleaded and the writ
petitions are liable to be thrown away on
this ground alone and lastly that the State
Government
has
also
taken
policy
decision by issuing the Government order
dated 3.8.2001 and the advertisement is in
discharge of the State obligation under
Article 45 of the Constitution and cannot
be challenged.

7. The learned Single Judge has held
that the argument that the petitioners have
taken their chance and thereafter, when
they have failed in the written test, they
challenged the selection and therefore,
they should not be allowed to challenge
the selection, is not tenable in view of the
specific circumstances of the fact that the
petitioners have challenged the impugned
advertisement,
selection
and
the
appointment pursuant there to on the
ground of violation of their rights
including the rights conferred on them in
chapter-III under Articles 14,15,16 and 21
of the Constitution of India.

8. So far as the plea of the policy
decision taken by the State Government is
concerned, the learned Single Judge had
found that for appointment of assistant
teachers in primary schools, the State
Legislature has already enacted the U.P.
Basic Education Act 1972 and has also
framed U.P. Basic Education (Teachers)
Service Rules 1981 and all appointments
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948 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
are to be governed under the aforesaid
two
statutory
enactments
and
the
Government Orders is contrary to the
provisions of the Act as well as the Rules.
So far as the plea regarding successful
candidates having not been impleaded and
the writ petitions are liable to be thrown
away on this ground alone is concerned
the learned Single Judge has found that
before the Court, the Chief Standing
Counsel
on
behalf
of
the
State
Government had made a categorical
statement that no one has been declared
selected and no single person has been
appointed in pursuance of the impugned
process of selection and only the result
has been declared and even the list has not
been supplied to the district concerned the
selectees need not be impleaded as no
appointment letters have been issued. The
learned Single Judge has further found
that the reservation of 50% to Arts and
50% to Science group or 50% males and
50% females cannot be said to belong to
backward classes of citizen so as to entitle
them for reservation under Articles
14,15,16 and 21 of the Constitution of
India. This reservation available in
accordance with the provisions of U.P.
Public services (Reservation for SC/ST
and other Backward Classes) Act 1994
and is also contrary to the provisions of
the Constitution of India.

9. The learned Single Judge further
held that changing the preparation of
merit list from Statewise to Districtwise is
arbitrary and illegal and contrary to the
Constitutional provision and law declared
by this Court.

Rival Submissions

The
learned
Advocate
General
challenged the judgment and order of the
learned Single Judge on the following
grounds:

1.
The writ petitions as filed by the
petitioners was not maintainable as the
selected
candidates
had
not
been
impleaded.

2. All the writ petitioners participated
in the selection proceedings and only after
being unsuccessful, they have approached
this Court by filing the present writ
petitions.
They
are
estopped
from
challenging the advertisement and the
selection process held pursuant thereto.

3.
Special B.T.C. training has been
recognised as a training course by the
State
Government
as
equivalent
qualification to B.T.C. under Rule 8 (2) of
the Rules.

4.
The reservation provided for females
to the extent of 50% does not violate any
constitutional
provision-likewise,
providing reservation 50% for Arts group
and 50% for science group candidates
also does not violate any of the
Constitutional provision as the overall
Limit of reservation does not exceed the
permissible limit of 50% and the aforesaid
reservation are only in their respective
categories.

5.
The plea of promissory estoppel is
not available to the writ petitioners.

6.
The State Government is well within
its right to prepare merit list at the District
level for the special reasons that teaching
in Basic Primary Schools has to be made
in the local dialect and the persons
belonging to that district alone are well
versed in the local dialect .
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3 All] State of U.P. and others V. Anant Kumar Tiwari and others 949
7.
The State is making selection of the
candidates to whom special B.T.C.
training is to be imparted and is not
making any appointment on the post of
assistant teachers. Only those candidates,
who are selected for special B.T.C.
training and after successful completion
of
the
training
and
clearing
the
examinations, would be eligible for being
considered for appointment on the post of
Assistant Teachers. Thus, the provisions
of the Act or the Rules do not come into
play at this stage.

10. Sri R.N. Singh, learned Senior
counsel appearing for the appellants in
Special Appeal No. 365 of 2002, adopted
the submissions made by the learned
Advocate
General.
He,
however,
submitted that the reservation provided to
the females and for Arts and Science
groups are horizontal reservations, which
is permissible. Sri P.S. Baghel, learned
counsel appearing for the appellants in
Special Appeal No. 381 of 2002 in
addition to the submissions already made
by the learned Advocate General and Sri
R.N. Singh, submitted that under Article
350-A of the Constitution of India, State
and every local authority within the State
is under legal obligation to provide
adequate facility for instruction in the
mother tongue at the primary stage of
education to the children belonging to
linguistic minority groups.

11. Sri M.D. Singh Shekhar, learned
counsel appearing for the appellants in
Special Appeal No. 420 of 2002, while
adopting the arguments already advanced
before us submitted that the appellants
had already been selected for training and
infact, had also gone for training. Thus,
they were necessary parties to be
impleaded in the writ petition in the
absence of which no writ could have been
issued effecting their interest.

12. Sri Shailendra, learned counsel
appearing for the respondents, however,
submitted as follows:

1.
The writ petition filed by the
petitioners was maintainable, as there was
no necessity of impleading the selected
candidates in view of the statement given
by the learned Chief Standing Counsel
before the learned Single Judge, that no
one is declared selected and appointment
of any single person has not been made in
pursuance of the impugned process of
selection and further that only the result
has been declared and even the list has not
been supplied to the district concerned.
2. The writ petitioners had approached
this Court only when the criteria for
preparation of the merit list was changed
from State level to District level. The
petitioners' name would have found place
in the merit list if it was prepared in
accordance with the Government order
dated 14.9.2001 and only when the said
Government order was amended vide
Government
order
dated
31.10.2001
directing preparation of merit list at the
district level that the cause of action arose
to the petitioner. Thus, the plea that the
petitioners
had
participated
in
the
selection
and
only
after
being
unsuccessful they have challenged and are
thus, estopped from challenging the
advertisement and the selection process is
misconceived.
3.
The recognition granted by the State
Government to the special B.T.C. course
as equivalent to B.T.C. is in violation of
the provisions of National Council of
Teachers Education Act 1993, as power to
recognize a training course solely vests
with the National Council of Teachers
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950 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Education. Since special B.T.C. course
has not been recognised by the National
Council of Teachers Education, the said
course cannot be treated as equivalent to
B.T.C. course by the State Government.
4.
The entire process of selection is
contrary to the provisions of the Basic
Education Act, 1972 and the U.P. Basic
Education (Teachers) Service Rules 1981.
5.
The reservation of 50% for females.
50% for males as also 50% for Arts
Group and 50% for science group are
arbitrary and violative of Article 15 and
16 of the Constitution of India.
6.
The preparation of merit list district
wise is arbitrary ;and violative of Article
15 and 16 of the Constitution of India.
7.
On the basis of the rival submissions
made before us, the following issues arise
for determination :
i)
whether in the absence of the
selected
candidates
having
been
impleaded by the writ petitioners, the writ
petitions are maintainable.
ii)
Whether the writ petitioners having
applied for special B.T.C. training jcourse
and having failed to get their name in the
merit list are estopped from challenging
the advertisement and the selection made
pursuant thereto.
iii) Whether the plea of promissory
estoppel
is
available
to
the
writ
petitioners.
iv) Whether the reservation of 50%
females and 50% males and 50% for Arts
Group and 50% for science group in
addition to the reservation policy of the
State Government already in force is
contrary to the provisions of Articles 14,
15 and 16 of the Constitution of India.
v.) whether the State Government can
prepare merit list at the District level
instead of State level and the same is
violative of Articles 15 and 16 of the
Constitution of India.
vi) Whether the provisions of Article
350-A of the Constitution of India are
attracted in the present case.
vii) Whether the selection of candidates
for special B.T.C. training is contrary to
the provisions of the Basic Education Act,
1972
and
U.P.
Basic
Education
(Teachers) Service Rules 1981.

Point No. 1

13. For determination of this point it
is necessary to mention that the State
Government for the first time took a
decision on 3.8.2001 to appoint 20,000/-
B.Ed./L.T.
qualified
and
selected
candidates on the vacant post of assistant
teachers in the primary school run by the
State Government after they complete two
months' special B.T.C. training and are
found successful in the examination. The
selection was to be made on the basis of
district wise merit list on 20.8.2001, the
field
for
selecting
candidates
was
extended to graduates having G.P.Ed.
D.P. Ed.; and B.P. Ed. Training besides
B.Ed./L.T. candidates. On 14.9.2001, the
State Government decided to prepare a
merit list at the State level instead of
district wise merit list. The advertisement
was published in the daily newspaper
(Danik Jagran) on 14.6.2001 and the
corrigendum was published on 22.9.2001.
The
State
Government
changed
its
decision regarding preparation of merit
list at the State level and reverted to the
earlier position of preparing the merit list
at the district level on 31.10.2001. In the
leading writ petition being Civil Misc.
Writ Petition No. 37124 of 2001, Anant
Kumar Tiwari and others v. State of U.P.
and others, it has come on record that Sri
Ashok Mehta, the learned Chief Standing
Council on behalf of the State respondents
had made a statement at the Bar that only
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3 All] State of U.P. and others V. Anant Kumar Tiwari and others 951
the result has been declared and even the
list has not been supplied to the district
concerned as there is already interim
orders of this Court passed on 9.11.2001.

14. The result of the selected
candidates was published on 3.11.2001.
The counselling was to take place from
19.11.2001 to 22.11.2001. It may be
mentioned here that the list of selected
candidates was published on the basis of
the applications made by them and the
verification of the documents/certificates
were to be made in the counselling
scheduled for 19.11.2001 to 22.11.2001
and only thereafter the final select list
would have been drawn. In these
circumstances, particularly, in view of the
statement made by the learned Chief
Standing Counsel at the Bar referred to
above,
there
was
no
question
of
impleading any of the alleged selected
candidates. It is well settled by the
Hon'ble
Supreme
Court
that
mere
selection or placement of the name in the
select list does not confer any right of
appointment.
(See:
I.J.
Diwakar
v.
Government of Andhra Pradesh, A.I.R.
1982 SC 155 and Shankarsan Das v.
Union of India AIR 1991 SC-1612).

15. The learned Advocate General
has relied upon the following decisions in
support of his submission that the selected
candidates had to be made party in the
writ petition and in their absence no writ
can be issued, which adversely effects
them :

1. Prabodh Verma and others v. Dal
Chand and others AIR 1985 SC-167.

2.
Sukhpal Singh and others vs. Punjab
State Agriculture Marketing Board and
others 1994 (6) SCC-320.
3.
Aliji Momonji & Company v. Lalji
Mavji and others 1995 (5) SCC -379.

4.
Arun Tewari and others V. Zila
Mansavi Shikshak Sangh and others 1998
(2) SCC-332.

5. All India SC & ST employees
Association and Another vs. Arthur Jeen
and others JT 2001 (5) SC-42.

16. In the case of Prabodh Verma,
the
Hon'ble
Supreme
Court
was
considering the question of absorption of
reserve pool teachers pursuant to the
Ordinance
promulgated
by
the
Government of U.P. namely, U.P. High
School
and
Intermediate
Colleges
(Reserve pool teachers) Ordinance 1978,
which
provided
for
filling
up
of
substantive vacancy in the post of a
teacher for an institution recognised by
the
Board
of
High
school
and
Intermediate Education U.P. by offering
the same to a teacher whose name is
entered in the register of reserve pool
teachers maintained by the District
Inspector of Schools. Pursuant to the
Ordinance some of the reserve pool
teachers were appointed in the substantive
vacancy. The validity of the Ordinance
was challenged by some of the applicants
for the vacant posts and also the
association.

17. In this background the Hon'ble
Supreme Court has held as follows: -

"The first defect was that of nonjoinder of necessary parties. The only
respondents to the Sangh's petition were
the State of Uttar Pradesh and its
concerned officers. Those who were
vitally concerned, namely, the reserve
pool teachers, were not made parties- not
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952 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
even by joining some of them in a
representative capacity, considering that
their number was too large for all of them
to be joined individually as respondents.
The matter, therefore, came to be decided
in their; absence. A High Court ought not
to decide a writ petition under Article 226
of the Constitution without the persons
who would be vitally affected by its
judgment being before it as respondents in
a representative capacity if their number
is too large, and, therefore, the Allahabad
High Court ought not to have proceeded
to hear and dispose of the Sangh's writ
petition without insisting upon the reserve
pool teachers being made respondents to
that writ petition, or at least some of them
being
made
respondents
in
a
representative capacity, and had the
petitioners refused to do so, ought to have
dismissed that petition for non-joinder of
necessary parties.'

18. Here in the present case the
selection list, which was published on
3.11.2001 was to be given effect to only
after the counselling scheduled to be held
between 19/21.11.2001 after verification
of the testimonials/ certificates/documents
mentioned in the application. Thus, till
such time the counselling was not done,
no right had accured to the candidates
whose names found place in the select
list.

19. In the case of Sukhpal Singh and
others (supra), the Hon'ble Supreme
Court has held that subsequent to the
cancellation of the appointment of the
appellants, on a regular advertisement,
candidates were selected, appointments
were made and the posts have been filled
up and have been functioning. They were
not before the Court nor they were sought
to be impleaded in the High Court.
Therefore, any order that may be passed
would have adverse effect of unsettling
their appointment without they being
impleaded and; without opportunity of
hearing being given to them. In the
present case, admittedly, in view of the
categorical statement made by the learned
Chief Standing Counsel, the persons
whose name appeared in the select list
have neither have been intimated nor.
They
have
been
issued
letter
for
counseling, when the writ petitions were
filed. Thus, the question of impleading the
selected candidates does not arise at this
stage.

20. In the case of Aliji Momonji &
Company (supra), the Hon'ble Supreme
Court had held that in the event of
building being demolished, the right, title
and interest of the land lord would
directly be effected and the landlord
would be a proper party, though , no relief
has been sought for against the land lord.
As already held earlier, the selected
candidates had not yet perfected any right
so as to be impleaded as a necessary
party.

21. In the case of Arun Tewari and
others (supra), the Hon'ble Supreme
Court has found that the appointment
letter
were
issued
to
the
selected
candidates in most districts before these
were challenged before the Tribunal and
these
assistant
teachers
have
been
appointed initially for the period of
probation of two years. All the applicants,
who have challenged the provisions of
recruitment of assistant teachers under the
operation Blackboard Scheme before the
tribunal did not possess the requisite
qualification for being selected under the
said scheme as assistant teachers and their
names did not figure amongst the list
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3 All] State of U.P. and others V. Anant Kumar Tiwari and others 953
forwarded by the District Employment
Exchanges. They did not make the
selected/appointed candidates, who were
directly effected by the outcome of their
applications before the tribunal as party
respondents. The Hon'ble Supreme Court
had held that the High Court ought not to
have decided the writ petitions under
Article 226 of the Constitution of India
without the persons who would be widely
effected by the judgment being before it;
as respondents or as at least some of them
before
it
as
a
respondent
in
a
representative capacity.

22. In the case of All India SC & ST
employees
association
and
another
(supra), the Hon'ble Supreme Court has
held as follows :

"Although the candidates included in
the panel showing their provisional
selection
do
not
vested
right
to
appointment,
they
will
be
surely
interested in protecting and defending the
select list. It is the admitted position that
before
the
Tribunal
the
successful
candidates whose names were included in
the panel of selection were not made
parties. The arguments of the learned
counsel that
since
the
names and
particulars of the successful candidates
included in the panel were not given, they
could not be made parties has no force.
The applicants before the Tribunal could
have made efforts to get the particulars; at
least they ought to have impleaded some
of the successful candidates may be in a
representative capacity, if the large
number of candidates were there and if
there was any difficulty in service of
notices on them, they could have taken
appropriate steps to serve them by any
one of the modes permissible in law with
the leave of the Tribunal. This Court in
Prabodh Verma and others v. State of
Uttar Pradesh and others 1984 (4) SCC251) has held that in writ petitions filed
against the State questioning the validity
of recruitment of a large number of
persons in service could not be proceeded
with to hear and take decision adverse to
those affected persons without getting
them or their representative impleaded as
parties. In para 50 of the said judgment,
summarizing the conclusions this Court in
regard to impleading of respondents has
stated that -

"A High Court ought not to hear and
dispose of a writ petition under Article
226 of the Constitution without the
persons who would be vitally affected by
its
judgment
being
before
it
as
respondents or at least some of them
being before it as respondents in a
representative capacity if their number is
too large to join them as respondents
individually,
and
if;
the petitioners
refused to so join them, the High Court
ought to dismiss the petition for nonjoinder of necessary parties."

23. Sri Shailendra, learned counsel
for the respondent- writ petitioners has
relied upon a decision of the Hon'ble
Supreme Court in the case of Union of
India and others v.