Junior Bhrtee Professional Case :-
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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 21
Case :- SPECIAL APPEAL DEFECTIVE No. - 261 of 2016
Appellant :- Pradeep Kumar
Respondent :- State Of U.P. And 6 Others
Counsel for Appellant :- Syed Faiz Hasnain
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav, Anoop Trivedi, Vibhu Rai
Hon'ble V.K. Shukla,J.
Hon'ble Vivek Kumark Birla,J.
Pradeep Kumar is assailing before us the judgement dated 11.09.20.15 passed in Civil Misc. Writ Petition No. 39466 of 2014 ( Satyendra Kumar Singh and 4 others Vs. State of U.P. and 3 others) wherein following order has been passed:-
" 5. Shri Shailendra, learned counsel appearing for petitioners contended that the issue raised is not the same as has been decided by this Court in Shiv Kumar Pathak and others (Supra). Therein the issue was, as to whether the candidates possessing degree in professional courses can be said to possess graduate degree or not and that was decided. However, in some of the professional courses the candidates did not have as a subject Science and Mathematics which was an essential qualification required to be possessed by a candidate in order to become eligible for appointment to the post of Assistant Teacher in Senior Basic Schools (Mathematics and Science subjects).
6. I find substance in what is submitted by Shri Shailendra. The issue raised in this petition was not raised in earlier petition and, therefore, it cannot be said that this writ petition is covered by the judgment dated 18.08.2015 passed in Shiv Kumar Pathak and others (Supra).
7. However, the short submission is that as per the advertisement in order to become eligible, the candidates must possess graduation degree with one of the subject (Mathematics and Science) in the said course.
8. It is contended that in some of the professional courses the subjects Mathematics and Science did not form part of syllabus and therefore, such candidates possessing such professional courses are not eligible.
9. In my view, this is a factual dispute and cannot be examined by this Court, at this stage, since it requires investigation of an individual case of the candidates called for counseling. Let this examination be made by the concerned authorities at the time of counseling or in any case before making appointment. I leave it open to petitioners to raise this plea before the respondents. Further, I direct the Competent Authority to examine the eligibility of each and every candidate possessing professional course degree as to whether, he is eligible in terms of advertisement or not, i.e., whether Science and Mathematics was one of the subject in graduation course, and, thereafter only it will allow counseling. In any case the same exercise would be done by the Competent Authority before appointment, if not already done, at the time of counseling and no person ineligible shall be appointed.
10. With the aforesaid direction, this writ petition is disposed of".�
Sri Kapil Tyagi, Advocate, holding brief of Sri Syed Faiz Hasnain, Advocate, learned counsel for the appellant submitted with vehemence that various incumbents of professional degree holders have been allowed for counseling, who are not� at all eligible as per Government Order and advertisement and the authorities on the spot areflouting the terms and condition of Government Order and advertisement, as such� present Special Appeal deserves to be allowed.
Arguments raised, has been resisted by learned Standing Counsel by contending that whatever action has been taken on the spot at the point of time of counseling, same is strictly in consonance with the terms and conditions of the Government Order; advertisement as well as per the� terms and conditions of the order dated 11.09.2015. As far as order dated 11.09.2015 is concern, said order clearly asks the authority concern to see and ensure that only such candidates are called for counselling, who fulfil the terms and conditions as has been described in the Government Order and advertisement and further in order to become eligible candidates have to possess Science and Mathematics as one of the subject in graduation course and accordingly such exercise is required to be undertaken as to whether incumbent is eligible as per the terms and conditions� by having Science and Mathematics as one of the subject in graduation course.
The directives issued by the learned Single, is not at all liable to be interfered with, but we certainly make it clear that in case the incumbents who have been called for counseling� they do not fulfil the terms and conditions of the Government Order; Advertisement as well as terms and condition of the order dated 11.09.2015, then it is always open to the appellant to raise such grievance with all material particular before the authority concern� and the authority concern on the basis of record would try to rectify/remedy the situation after providing opportunity of hearing to the incumbent against whom such a complaint has been made.
Consequently, present Special Appeal is dismissed. This order has been passed in presence and with due assistance of Sri� Vibhu Rai, Advocate as well as Sri A.K. Yadav, Advocate, counsel for the respondents.
Order Date :- 6.4.2016
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