(Uday Umesh Lalit and M.R. Shah, JJ.)
Sanjai Kumar and Others ___________________________ Petitioner(s);
v.
Dr. Prabhat Kumar _________________________________ Respondent.
Conmt. Pet.(C) No. 1332-1360/2018 In C.A. No. 4347-4375/2014, decided on July 22, 2019
(Application(s) For Impleadment/Intervention Application & Permission to File Additional Documents/Facts/Annexures) With Conmt. Pet.(C) No. 1391-1419/2018 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Impleadment/Intervention Application, exemption from filing O.T. & Permission to File Additional Documents/Facts/Annexures) Conmt. Pet.(C) No. 1673-1701/2018 In C.A. No. 4347-4375/2014 (III-A) ((Application(s) For Impleadment/Intervention Application & Exemption From Filing O.T. & Permission to File Additional Documents/Facts/Annexures) Conmt. Pet.(C) No. 1935-1963/2018 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Impleadment/Intervention Application & Exemption From Filing O.T.) Conmt. Pet.(C) No. 1964-1992/2018 In C.A. No. 4347-4375/2014 (III-A) (Application For Permission to Correct Name of Father For Correction) Conmt. Pet.(C) No. 1993-2021/2018 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Exemption From Filing O.T. & Intervention/Impleadment Conmt. Pet.(C) No. 2022-2050/2018 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Intervention/Impleadment & For Clarification/Direction) Conmt. Pet.(C) No. 2051-2079/2018 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Exemption From Filing O.T.) Conmt. Pet.(C) No. 2127-2155/2018 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Intervention/Impleadment) Conmt. Pet.(C) No. 20-48/2019 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Exemption From Filing O.T & permission to file addl. Documents/facts/annexures) Conmt. Pet.(C) No. 323-351/2019 In C.A. No. 4347-4375/2014 (III-A) (Application(s) For Exemption From Filing O.T. & Impleadment) Conmt. Pet.(C) No. 741/2019 In C.A. No. 9732/2017 (III-A) (Application(s) For Exemption From Filing O.T.) Conmt. Pet.(C) No. 704-732/2019 In C.A. No. 4347-4375/2014 (III-A) Item 302 Conmt. Pet.(C) No. 776-790/2019 In C.A. No. 4347-4375/2014
The Order of the court was delivered by
Order
1. Heard learned counsel for the parties. Hearing concluded.
2. During the course of hearing, our attention was invited to orders dated 02.11.20151 and 07.12.20152 passed by this Court as well as to the affidavit dated 01.10.2016 sworn by Mr. Ajay Kr. Singh, Secretary, Basic Education, U.P. at Lucknow.
3. The order dated 02.11.20151 noted the submission of the learned counsel for the State as to how many candidates were appointed, how many were under-going training and what was the resultant vacancy situation. That part of the order dated 02.11.20151 was quoted in the subsequent order dated 07.12.20152. The relevant portion of the order dated 07.12.2015 is as under:—
“On 02.11.20151, after hearing the learned counsel for the parties, this Court noted the stand of Mr. Bhatia which is to the following effect:—
“It is submitted by Mr. Bhatia that keeping in view the order dated 27.07.20153, as against 72825 posts advertised, 43,077 candidates have been appointed, who, after completion of the training till September 2015, are working in praesenti. It is also submitted that 15,058 candidates are undergoing training out of which 8,500 shall be appearing in the examination on 16th and 17th November, 2015 and the rest will be appearing in the examination after completion of their training. In the result around 14,640 posts still remain vacant.”
Thereafter a grievance was made with regard to the people obtaining higher percentage not being appointed. The said grievance was taken note of in the following manner:
“At this juncture, number of counsel have raised a grievance that there are number of candidates who have secured more than 70% marks in TET examination in the general category and the lower percentage for other categories as per our earlier order and yet they are not appointed. At this juncture, learned Additional Advocate General submitted that some of the candidates might not have been appointed as they may not have been qualified otherwise under the NCTE Rules. We do not intend to interpret on the said point, as advised today.
However, the persons who are claiming that they are entitled to the benefit on the basis of the percentage fixed by the earlier order dated 27.07.20153 shall submit their applications/representations before the Secretary, U.P. Basic Education Board (Board), Allahabad within one week hence and the said authority shall constitute a Committee to verify their percentage of marks as well as criteria by which the persons who have already been selected and put the same on the website as well as due intimation be given to the applicants. If there is parity they shall be extended the benefit of our order forthwith. The said exercise shall be completed within three weeks.”
Be it stated that on that occasion, four issues were framed to be dealt with at the time of final hearing.
It is submitted by Ms. K. Sharda Devi, learned counsel that the names of the appointees have not yet been put on the website. Mr. Vijay Bahadur Singh, learned Advocate General for the State of U.P. and Mr. Gaurav Bhatia, learned AAG undertake that the same shall be put on the website within a week hence.
At this juncture, we may state that Mr. Bhatia, learned AAG submitted that in pursuance of the direction of this Court on the earlier occasion and prior to that more than 75,000 representations were received and after scanning the same, the State Government has found 12,091 persons eligible for being appointed subject to verification of antecedents. Let the said persons be appointed subject to the said verification within six weeks hence.”
4. Thus, according to the State Government, after considering 75,000 odd representations it had found 12091 candidates to be eligible for appointment, subject to verification of antecedents.
5. It appears that the process that was undertaken however did not result in giving appointment orders to all 12091 candidates. As stated in para 21 of the affidavit dated 01.10.2016, out of this body of 12091 candidates, only 391 candidates came to be appointed as the others did not take part in the selection process or had not opted for certain Districts or could not be selected going by the cut off for the concerned Districts.
6. The affidavit thus stated that though opportunity was given to all 12091 candidates for counseling, the State could fill up only 391 posts. The affidavit further stated that one more opportunity was given by the State so that any candidate who was left out could ventilate his grievance and the advertisement was accordingly published on 06.02.2016.
7. The affidavit then stated that a further step was undertaken by the State and another advertisement was published on 08.02.2016 giving an opportunity to any candidate who was left out from being considered when the list of 12091 candidates was formalized. Para 25 of the affidavit stated as under:
“25. That as per the advertisement dated 30.11.2011 there were 72825 vacancies and till dated 64257 vacancies have been filled up and in addition to it, appointment letters are being issued in respect of 1536 posts, as per the parameters fixed by this Hon’ble Court and following the procedure prescribed in the recruitment Rules. The remaining vacancies belong to special horizontal reservation categories of handicapped persons, Dependants of Freedom Fighters, ex-servicemen and also the scheduled caste and scheduled tribe candidates and these remaining vacancies cannot be filled up by the candidates of any other category.
It is pertinent to mention that 862 candidates who were given ad hoc appointment on the basis of order of this Hon’ble Court dated 07.12.2015, are not included in the 64257 filled up vacancies and also the 1536 posts against which appointment letters are being issued.”
8. The matter was thereafter heard in April, 2017 and final judgment was pronounced in 2017.
9. Mr. Pallav Sishodia, learned senior advocate appearing for the State submitted that the stand so taken in the affidavit dated 01.10.2016 was never controverted by any of the candidates nor any grievance was projected on behalf of them. Mr. Sishodia submits that the grievance was raised more than a year after disposal of the matter in July, 2017.
10. Mr. Siddharth Dave, Mr. Ajit Sinha, Mr. V. Shekhar, Ms. V. Mohana and Mr. N.K. Mody, learned Senior Advocates appearing on behalf of some of the candidates submitted that the figures coming forth from the aforesaid orders dated 2.11.2015 and 7.12.2015 were completely at variance with the contents of the affidavit. It was submitted that if 43777 candidates were already appointed and 15058 were undergoing training as reflected in the order dated 2.11.2015, it meant that as on 2.11.2015, 58,135 candidates were already given appointments or were undergoing training. The vacancy situation projected on 2.11.2015 at 14640 was thereafter crystalised to the number of 12091 who were found to be eligible in all respects. If out of 12091 only 391 candidates were appointed, it would not be possible for the State Government to indicate in the affidavit that 64257 persons were already given appointment. In that situation, the number of candidates who were appointed would be 58135 plus such number of candidates as were drawn from the list of 12091 candidates.
11. Though we cannot disregard the fact that the challenge has been raised more than a year after the final judgment, we call upon the State Government to indicate on affidavit by a competent person (the name of Ms. Renuka Kumar, Additional Chief Secretary [Basic Education] Govt. of U.P., Lucknow, was suggested by the learned counsel for the State) giving the following details:
(a) District-wise break-up of the last candidates in various categories in the District who were given appointments by October, 2016?
(b) Whether any fresh appointments were effected after October, 2016?
(c) Whether any person other than the one who satisfied the requirement laid down by this Court in its order dated 27.7.2015 as modified by further orders of this Court was given appointment? If so, the name, age, and marks obtained by every such candidate as against the cut off.
12. The affidavit shall be filed within four weeks from today.
13. Let soft-copies of the affidavit be served upon the learned counsel appearing for the petitioners in all the contempt petitions.
14. Judgement reserved.
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1 State of U.P. v. Shiv Kumar Pathak, (2015) 17 SCC 230 : (2015) 17 SCC 238 : (2015) 3 SCC (L&S) 724 : (2015) 3 SCC (L&S) 732
2 State of U.P. v. Shiv Kumar Pathak, (2015) 17 SCC 230 : (2015) 17 SCC 240 : (2015) 3 SCC (L&S) 724 : (2015) 3 SCC (L&S) 734
3 State of U.P. v. Shiv Kumar Pathak, (2015) 17 SCC 230 : (2015) 17 SCC 233 : (2015) 3 SCC (L&S) 724 : (2015) 3 SCC (L&S) 727
