Final Decision of Allahabad Highcourt for recruitment of 72825 Teachers in Basic Education Dept.
PART -7
In
view of the aforesaid, we proceed to examine the contention of the
learned counsel for the parties on the aforesaid issues on merits.
It
is necessary to note certain relevant facts which are on record before
proceeding to answer the aforesaid issues. After enactment of the Act,
2009, notification dated 23.8.2010, was issued by the National Council
for Teacher Education laying down the minimum qualifications for
appointment of Teachers in primary schools. Notification dated
23.8.2010, was further amended vide notification dated 29.7.2011.
The State of U.P. has also framed rules namely: The Uttar Pradesh Right
of Children to Free and Compulsory Education Rules, 2011. Rule 15 of
the aforesaid rules provided that minimum educational qualifications for
teachers laid down by an authority, authorized by the Central
Government, by notification, shall be applicable for every school. The National
Council for Teacher Education has also issued guidelines dated
11.2.2011, for conducting Teacher Eligibility Test and for providing
weightage to the marks of the Teacher Eligibility Test while making
appointment on the post of teachers. The
State
of U.P. amended the Rules, 1981 to make it in conformity with the
notification dated 23.8.2010 as well as with the guidelines of the
National Council for Teacher Education dated 11.2.2011.
The 12th amendment rules dated 09.11.2011, was issued by the State
providing for qualifications by National Council for Teacher Education
as an essential qualification and providing that the basis of preparing
the select list shall be the marks obtained by the candidate in the
Teacher Eligibility Test examination. The State of U.P. authorized the
U.P. Board of High School and U.P. Intermediate Education to conduct the
Teacher Eligibility Test. Teacher Eligibility Test examination was held
on 13.11.2011. 596733 candidates appeared in the Teacher Eligibility
Test examination for Classes I to V. 524577 candidates appeared in the
Teacher Eligibility Test examination for Classes VI to VIII. The U.P.
Board of High School and Intermediate Education has authorised one M/s
S.K. Printed Data Creative Solution-303 New Delhi to conduct the entire
work of preparing the question papers and moderation and evaluation. On
14.11.2011, model answers were uploaded on the website. On 25.11.2011
the result of the Teacher Eligibility Test examination was declared.
49.09% candidates were declared successful in the Teacher Eligibility
Test examination for Classes 1 to V and 50.51% candidates were declared
successful in the Teacher Eligibility Test examination for Classes VI to
VIII. The result of the Teacher Eligibility Test examination was
modified on account of the change of key answers of certain questions on
30.11.2011, 05.1.2012 and 09.1.2012.
Several writ
petitions were filed in this Court challenging the result of the Teacher
Eligibility Test examination. This Court in Writ Petition
No.71563/2011, Lalit Mohan Singh & Ors. Vs. State of U.P. & Ors,
disposed of the writ petition on 16.12.2011, directing that the marks
to be given on six questions on the basis of earlier key answers as well
as modified key answers. In Writ Petition No.74109/2011, Tahira Begum
Vs. State of U.P. & Ors, a direction was given to give marks on two
questions. Writ Petition No.71558/2011, Sita Ram Vs. State of U.P. &
Ors and Writ Petition No.72433/2011, Govind Kumar Dixit Vs. State of
U.P. & Ors were filed challenging the advertisement dated 30.11.2011
as well as the 12th amendment rules dated 09.11.2011. Both the writ
petitions were dismissed on 12.12.2011 and 14.12.2011 respectively.
Directions of the Court as noted above was implemented by modifying the
result. On 20.12.2011, a modified advertisement was issued inviting
applications for the posts of 72825 Teachers. On 31.12.2011, in a
regular checking of vehicles, the police of District Ramabai Nagar
detained 5 persons who were carrying huge cash and a list of 30
candidates. An F.I.R. was lodged being Case Crime No.675/2011 under
Section 420/120 B I.P.C. and under the Prevention of Corruption Act,
1988. The money was allegedly collected for getting the candidates
passed in the Teacher Eligibility Test examination and to get them
appointed. The allegations made against the Teacher Eligibility Test
examination were taken notice by the State Government and a High Powered
Committee was constituted by Government Order dated 10/4/2012 headed by
Chief Secretary of the State to look into the allegations made against
the Teacher Eligibility Test Examination 2011 and submit a report
regarding recruitment of teachers and Teacher Eligibility Test
Examination. The High Powered Committee submitted its report on
01.5.2012. The High Powered Committed noted that there are about 2.70
lacs posts of Primary Teachers lying vacant in the State of U.P. The
allegations made against the Teacher Eligibility Test Examination-2011
were taken note of by the High Power Committee. The Senior
Superintendent of Police, Ramabai Nagar had submitted its report before
the High Power Committee on the basis of the investigation in Case Crime
No.675/2011. The Director of Education also submitted its report. The
High Powered Committee noted that some of the original OMR Sheets were
not sent to the firm and on the basis of the carbon copy evaluation was
made under the direction of the Board of High School and Intermediate
Education. In certain OMR Sheets whitener was also used. It also noted
that moderation of papers was left to the firm which was not done by the
Board of High School and Intermediate Education. Errors in the key
answers was noted and the orders of this Court passed in Lalit Mohan's
case and Tahira Begum's case was also noted. The High Powered Committee
in its report submitted that large number of posts of teachers being
lying vacant in the State of U.P., it is not desirable to cancel the
Teacher Eligibility Test Examination 2011. The High Powered Committee
further recommended that the Teacher Eligibility Test Examination-2011
be made only qualifying examination and the criteria for selection which
was earlier prevalent i.e. on the basis of quality points marks should
be restored. The High Powered Committee submitted following nine
recommendations which are quoted below:
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The
two important recommendations which were suggested by the High Powered
Committee were, firstly, that the Teacher Eligibility Test
Examination-2011 be made only qualifying examination and the criteria
for selection which was prior to 12th amendment rules should be restored
and, secondly those candidates against whom there are allegations of
any irregularity or criminal offence shall be prohibited from
participating in the aforesaid examination and their selection shall be
cancelled. The above recommendations of the High Powered Committee were
considered by the Cabinet and the Cabinet after deliberation took a
decision to approve the recommendation of the High Powered Committee.
Government Order dated 26.7.2012 was issued accepting and reiterating
the above quoted nine recommendations of the High Powered Committee.
Writ
Petitions were immediately filed after the issuance of the Government
Order dated 26.7.2012. Following the decision taken by the Cabinet 15th
amendment rules were published on 31.8.2012 amending the Rules, 1981 by
which the criteria for selection as was prevalent prior to 12th
amendment rules was restored. The Government Order dated 31.8.2012 was
issued to the effect that in view of the 15th amendment rules the
earlier advertisement dated (30/11/2011) has become ineffective and be
cancelled. The U.P. Basic Education Board issued a communication dated
31.8.2012 to the effect that the criteria for selection having been
changed the earlier advertisement dated 30112011 and 20.12.2011 have
become ineffective and are cancelled.
Decision of the State Government dated 26.7.2012
The
High Powered Committee headed by the Chief Secretary of the State had
taken into consideration all the allegations made against the Teacher
Eligibility Test-2011 and it was decided not to cancel the result of
Teacher Eligibility Test Examination-2011. It was further decided that
the Teacher Eligibility Test Examination-2011 be made only qualifying
examination and the criteria for selection which was prevalent prior to
12th amendment rules shall be restored. The High Powered Committee
recommended that those candidates against whom there are allegations of
any irregularity or criminal offence shall be prohibited from
participating in the said examination and their result be cancelled. The
High Powered Committee suggested that an undertaking on affidavit be
taken from all the candidates that in event any irregularity or any
involvement in criminal offence is found, there selection shall be
cancelled. The Teacher Eligibility Test-2011 has been made a minimum
qualifying examination by notification dated 23.8.2010 issued under
Section 23 of the Act, 2009. It was not within the power of the State to
not accept the Teacher Eligibility Test qualification as an essential
qualification. The decision of the High Powered Committee and the
Government that the Teacher Eligibility Test Examination-2011 be allowed
to continue only as a minimum qualification was of no consequence. The
State was bound by the notification dated 23.8.2010 and could not have
taken any other decision. When the Teacher Eligibility Test
Examination-2011 was not cancelled and allowed to be continued as a
minimum qualification in the selection of the post of Assistant Teacher,
the decision not to give weightage to the marks obtained in the Teacher
Eligibility Test was unsustainable. The material which was on the
record relates to the allegations made against few hundreds of
candidates. There was no allegations of any mass copying or leaking of
the question papers. More than 10 lacs students have appeared in the
Teacher Eligibility Test Examination-2011 and the State having taken the
decision not to cancell the Teacher Eligibility Test Examination-2011,
full effects ought to have been given to the result of the Teacher
Eligibility Test Examination-2011 including the marks obtained by the
candidates. The ill effect of the irregularity and involvement in
criminal offence was met in the recommendations that those candidates
against whom there were allegations shall be prohibited to appear in the
selection and their result be cancelled and further an undertaking on
affidavit be taken from all the candidates. The decision having been
taken by the State after due deliberation to continue with the Teacher
Eligibility Test Examination-2011 and to rely upon it for minimum
qualification for selection there was no requirement for embarking on
the amendment of Rules and to change the very criteria for selection.
While
deciding the Issue No.3 we have already held that the guidelines dated
11.2.2011, issued by the National Council for Teacher Education require
the State to give weightage of the marks obtained in the 'Teacher
Eligibility Test' Examination -2011 in appointment on the post of
Teachers. The guidelines dated 11.2.2011 issued by the National Council
for Teacher Education have been held to be binding. A Full Bench of this
Court in Shiv Kumar Sharma (Supra) in paragraph 88 (as quoted above)
has already laid down that the State Government has to give weightage to
the marks of the Teacher Eligibility Test in the recruitment process.
In view of the binding nature of the guidelines dated 11.2.2011, issued
by the National Council for Teacher Education and the decision of the
Full Bench of this Court in Shiv Kumar Sharma's case (Supra) the State
Government could not have taken any decision to ignore the weightage of
the marks of the Teacher Eligibility Test Examination-2011. It
is relevant to note that immediately after the advertisement dated
30.11.2011, as well as the 12th amendment Rules dated 09.11.2011, by
which the selection was contemplated as per the marks of the Teacher
Eligibility Test, a challenge to advertisement dated 30.11.2011 and 12th
Amendment Rules was raised in this Court by means of Writ Petition
No.71558/2011, Seeta Ram Vs. State of U.P. & Ors and Writ Petition
No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P. & Ors.
Writ Petition
No.71558/2011, Seeta Ram Vs. State of U.P. & Ors was dismissed on
12.12.2011 by the learned Single Judge of this Court who repelled the
challenge to the advertisement dated 30.11.2011, as well as the 12th
amendment Rules dated 09.11.2011. While dismissing the writ petition
following was laid down in paragraph 9. :
"9.
So far as making of qualifying examination basis of selection is
concerned, it is always permissible to the rules framing authority to
determine the criteria for selection which may base on the merits of the
candidate possessed in various academic qualifications or qualifying
test or any other criteria which may otherwise be valid and once it is
so determined, unless it can be said that the same amendment in the rule
is contrary to any statutory provision or otherwise ultra vires or
vitiated in law, the same cannot be interfered."
Writ
Petition No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P.
& Ors. was also dismissed by the learned Single Judge of this Court
on 14.12.2011. The decision of the State Government dated 26.7.2012 to
the effect that the criteria for selection as was prevalent prior to the
12th amendment rules be restored, thus cannot be sustained, which being
clearly against the guidelines of the National Council for Teacher
Education dated 11.2.2011. As noted above, the learned Single has
already held that the grounds mentioned in the resolution of the State
Government under the Government Order dated 26.7.2012 as not in
accordance with law.
15th Amendment Rules.
While
challenging the 15th Amendment Rules, Shri Ashok Khare, learned counsel
appearing for the appellants contended that the State was obliged to
follow the guidelines dated 11.2.2011 issued by the National Council for
Teacher Education which are binding and which has already been upheld
by the Full Bench of this Court in Shiv Kumar Sharma's case (supra). It
is submitted by Shri Ashok Khare, learned counsel appearing for the
appellants that the
Teacher
Eligibility Test has been introduced by the notification dated
23.8.2010 for the purposes of maintaining a standard of teacher's
education and for the purposes of bringing uniformity in the teacher's
selection process. He submits that the candidates obtain educational
qualification through different boards with different criteria of
marking on account of which selection of teachers only on educational
qualifications cannot be said to be on uniform merit. It is submitted
that the Teacher Eligibility Test being now a essential qualification in
selection of teachers, performance of a candidate in a Teacher
Eligibility Test cannot be ignored. He submits that the Teacher
Eligibility Test is the most surer test of examining the merit of a
candidate.
The grounds for challenge of a
statute are well settled. A subordinate legislation can be challenged
on the ground of violating the constitutional provisions, the parent
statute or any other statutory law. Violation of Part 3 of the
Constitution has always been accepted as a ground to strike-down a
legislative or executive action. It shall be sufficient to refer to the
judgment of the Apex Court in State of Tamil Nadu & Ors Vs. K. Shyam
Sunder & Ors, (2011) 8 SCC, 737, wherein the grounds of legislative
arbitrariness has been dealt with. Following was laid down by the Apex
Court in paragraphs 50,51,52 and 53.
"50. In Ajay
Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, this Court held that
Article 14 strikes at arbitrariness because an action that is arbitrary,
must necessarily involve negation of equality. Whenever therefore,
there is arbitrariness in State action, whether it be of the legislature
or of the executive, Article 14 immediately springs into action and
strikes down such State action. (See also : E.P. Royappa v. State of
Tamil Nadu, AIR 1974 SC 555; and Meneka Gandhi v. Union of India, AIR
1978 SC 597).
51. In Sharma Transport Vs. Government
of A.P., AIR 2002 SC 322, this Court defined arbitrariness observing
that party has to satisfy that the action was not reasonable and was
manifestly arbitrary. The expression "arbitrarily means" act done, in an
unreasonable manner, as fixed or done capriciously or at pleasure
without adequate determining principle, not founded in the nature of
things, non-rational, not done or acting according to reason or
judgment, depending on the will alone.
52. In Bombay
Dyeing & Mfg Co. Ltd. (3) v. Bombay Environmental Action Group, AIR
2006 SC 1489, this Court held that arbitrariness on the part of the
legislature so as to make the legislation violative of Article 14 of the
Constitution should ordinarily be manifest arbitrariness.
53.
In Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board,
AIR 2007 SC 2276; and Grand Kakatiya Sheraton Hotel and Towers Employees
and Workers Union v. Srinivasa Resorts Limited, AIR 2009 SC 2337, this
Court held that a law cannot be declared ultra vires on the ground of
hardship but can be done so on the ground of total unreasonableness. The
legislation can be questioned as arbitrary and ultra vires under
Article 14. However, to declare an Act ultra vires under Article14, the
Court must be satisfied in respect of substantive unreasonableness in
the statute itself."
The
15th amendment rules has been challenged on the ground of it being
arbitrary and unreasonable being violative of Article 14 of the
Constitution. The
notification
dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being
under a Parliamentary enactment has to prevail over any rules made by
the State under a State Act. The Rules, 1981 right from
1993 contains an Appendix which provides a formula for selecting a
teacher. Appendix indicates that selection was based only on the
educational qualification of an candidate including the training
qualification. After the notification dated 23.8.2010 and guidelines
dated 11.2.2011 issued by the National Council for Teacher Education,
the State amended its Rules, 1981 by 12th amendment rules to bring it in
conformity with the above notification and guidelines.
The 12th amendment rules was perfectly in accordance with law and the
challenge to the aforesaid rules have also been repelled by this Court
in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The
decision of the State Government not to give any weightage to the marks
obtained in the Teacher Eligibility Test Examination-2011 cannot be
said to be in conformity with the guidelines of the National Council for
Teacher Education referred to above and was clearly arbitrary. The
Full Bench of thisCourt in Shiv Kumar Sharma's case (supra) has already
held that the State Government cannot disregard the guidelines of
National Council For Teacher Education dated 11.2.2011.
The
15th Amendment Rules is thus also contrary to law declared by this
Court. The Teacher Eligibility Test (Examination-2011) which has been
recognised as an essential qualification for the teachers selection,
hence without giving any weightage to the said examination the State
cannot proceed with the selection. As
noted
above, the allegations made against few candidates of committing
irregularities in the Teacher Eligibility Test or involvement in
criminal offence cannot be a ground to deny benefit of Teacher
Eligibility Test to lacs and lacs of the candidates against whom there
is neither any allegation nor any charge. The
State
having not cancelled the Teacher Eligibility Test-2011 and having
allowed the Teacher Eligibility Test to be utilised for qualification of
candidates ought to have given full effect to the result of the Teacher
Eligibility Test examination. The
allegations
of irregularities and involvement in criminal offence by some
candidates was fully neutralised by the State's decision to debar any
such candidates from the selection against whom there are allegations of
irregularities or involvement in criminal offence. The
High Powered Committee has further stated in its report that an
undertaking be taken on an affidavit from all the candidates that in
event anything adverse is found against them, their selection shall be
cancelled.
The
State having given effect to the notification dated 23.8.2011 as well as
the guidelines dated 11.2.2011 issued by the National Council for
Teacher Education by amending its rules by 12th amendment rules, which
was in consonance with the scheme under the Act, 2009, a Parliamentary
enactment cannot be allowed to go back and resort to its old criteria
for selection which was prevalent prior to the Act, 2009 and prior to
the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the
view that Rule 14(3) of the 15th amendment rules by which the criteria
for selection was changed has to be held to be arbitrary and
unreasonable and deserves to be struck down. The
Government Order dated 31.8.2012 was issued by the State in consequence
to the 15th amendment rules. The Government Order dated 31.8.2012 states
that in view of the 15th amendment rules the earlier advertisement
(dated 30.11.2011) has become ineffective and thus be cancelled. For
cancelling the advertisement no other reason have been given except the
changed criteria of selection by 15th amendment rules. The Government
Order dated 31.8.2012 having not given any other reason for cancelling
the advertisement except that it had become ineffective after the 15th
amendment rules, thus the Government Order dated 31.8.2012, also
deserves to be set-aside including the consequential communication dated
31.8.2012 issued by the Board of Basic Education.
Shri
C.B. Yadav, learned Additional Advocate General appearing on behalf of
the State, in support of his submission, has placed reliance on the
various judgments of the Apex Court which need to be noted. He has
placed reliance on the judgment of the Apex Court in Union of India
& Ors. Vs. O. Chakradhar, 2002 (2) Supreme 50. In the said case the
Railway Recruitment Board had issued advertisement for the post of
Junior Clerk-cum typist in which the respondent was appointed. After
appointment various irregularities of serious nature in the conduct of
selection was found and the Railway Administration cancelled the entire
panel and terminated the services of the respondent. The decision was
challenged before the Tribunal which had set-aside the termination of
service. The High Court affirmed the judgment of Central Administrative
Tribunal against which the Union of India went in appeal. The Apex Court
had noted that from the report of the CBI the whole selection smacks of
arbitrariness and malafides. Following was observed by the Apex Court
in paragraph 11:-
"11. As per the report of the CBI
whole selection smacks of malafide and arbitrariness. All norms are
said to have been violated with impunity at each stage viz. right from
the stage of entertaining applications, with answer-sheets while in the
custody of Chairman, in holding typing test, in interview and in the end
while preparing final result......"
The Apex Court
allowed the appeal and restored the decision of the railway
administration. Present is not a case where the State had cancelled the
Teacher Eligibility Test-2011, rather it decided not to cancel the
examination with a rider to debar those candidates against whom there
are allegations of irregularity or involvement in criminal offence.
Thus, the said case does not help the respondents. In paragraph 7 of the
judgment, the Apex Court laid down, that in our view the nature and the
extent of illegalities and irregularities committed in conducting a
selection will have to be scrutinized in each case so as to come to a
conclusion about future course of action to be adopted in the matter.
The
next judgment relied on by Shri C.B. Yadav, learned Additional Advocate
General is Chairman, All India Railway Recruitment Board & Anr Vs.
K. Shyam Kumar & Ors, (2010) 6 SCC 614. In the said case the
decision of Railway Board directing the Railway Recruitment Board (RRB)
to conduct retest for recruitment to Group D posts, for those candidates
who had obtained minimum qualifying marks in first written examination
against which large-scale irregularities and malpractices were noticed,
was subject matter of consideration. The High Court interfered with the
decision against which the appeal was filed. The Apex Court held that
the decision of the High Court was not justified. The Apex Court had
occasion to consider the Wedenesbury and proportionality principle.
Following was laid down in paragraphs 18, 41, 42 and 43:
"18.
We are, in this case, primarily concerned with the question whether the
High Court was justified in interfering with the decision taken by the
Board in conducting a re-test for those who had obtained minimum
qualifying marks in the first written test and directing the Board to go
ahead with the recruitment process on the basis of first written test
against which there were serious allegations of irregularities and
malpractices. When this matter came up for admission before this Court
on 20.01.2006, this Court permitted the Board to declare the result of
the second test and proceed to appoint the selected candidates, however,
it was ordered that the appointments made be subject to the result of
these appeals. We are informed that candidates who got qualified in the
re-test were already appointed and have joined service.
41.We
have already indicated the three alternatives available to the
decision- maker (Board) when serious infirmities were pointed out in the
conduct of the first written test. Let us examine which was the best
alternative, the Board could have accepted applying the test of
Wednesbury unreasonableness. Was the decision taken by the Board to
conduct a re-test for those candidates who had obtained minimum
qualifying marks in the first written test so unreasonable that no
reasonable authority could ever have decided so and whether the Board
before reaching that conclusion had taken into account the matters which
they ought not to have taken into account or had refused to take into
account the matters that they ought to have taken into account and the
decision taken by it was so unreasonable that no reasonable authority
could ever have come to it? Judging the decision taken by the Board
applying the standard laid down in the Wednesbury principle
unreasonableness, the first alternative that is the decision to cancel
the entire written test and to conduct a fresh written test would have
been time consuming and expensive. Initially 10,02,909 applications were
received when advertisement was issued by the Board out of which
5,86,955 were found to be eligible and call letters were sent to them
for appearing in the written test held at various centres. 3,22,223
candidates appeared for the written test, out of which 2690 were
selected. Further the candidates who had approached the Court had also
not opted that course instead many of them wanted to conduct a re-test
for 2690 candidates, the second alternative. The third alternative was
to go ahead with the first written test confining the investigation to
62 candidates against whom there were serious allegations of
impersonation. The Board felt in the wake of the vigilance report and
the reports of the CBI, it would not be the best option for the Railway
Administration to accept the third alternative since there were serious
allegations of malpractices against the test. From a reasonable man's
point of view it was felt that the second option i.e. to conduct a
re-test for those candidates who had obtained minimum qualifying marks
in the first written test was the best alternative.
42.
We will now apply the proportionality test to three alternatives
suggested. Principle of proportionality, as we have already indicated,
is more concerned with the aims of the decision maker and whether the
decision maker has achieved the correct balance. The proportionality
test may require the attention of the Court to be directed to the
relative weight according to interest and considerations. When we apply
that test and look at the three alternatives, we are of the view that
the decision maker has struck a correct balance in accepting the second
alternative. First alternative was not accepted not only because such a
process was time consuming and expensive, but nobody favoured that
option, and even the candidates who had approached the court was more in
favour of the second alternative. Applying the proportionality test
also in our view the Board has struck the correct balance in adopting
the second alternative which was well balanced and harmonious.
43.
We, therefore hold, applying the test of Wednesbury unreasonableness as
well as the proportionality test, the decision taken by the Board in
the facts and circumstances of this case was fair, reasonable, well
balanced and harmonious. By accepting the third alternative, the High
Court was perpetuating the illegality since there were serious
allegations of leakage of question papers, large scale of impersonation
by candidates, mass copying in the first written test."
The Apex Court approved the decision of the Railway Board by which retest was directed.
In
the present case, no one has challenged the decision of the High
Powered Committee and the decision of the State Government not to cancel
the result of the Teacher Eligibility Test-2011. The said judgment also
thus does not help the State in the present case.
The
next judgment relied on by Shri C.B. Yadav, learned Additional Advocate
General is in Madhyamic Shiksha Mandal,M.P. Vs. Abhilash Shiksha Prasar
Samity & Ors, (1998) 9 SCC 236. In the said case, examination was
cancelled by the Board on the report of the Naib Tehsildar that the
students were found copying. The Apex Court upheld the decision of the
Board for cancelling the entire result and set-aside the judgment of the
High Court.
The next judgment relied on by Shri C.B.
Yadav, learned Additional Advocate General is in The Bihar School
Examination Board Vs. Subhas Chandra Sinha & Ors, 1970 (1) SCC 648.
In the said case, the Apex Court also held that when the examination was
vitiated by adoption of unfair means on a mass scale it was wrong to
insist that the board must hold a detailed inquiry into the matter and
examine each individual case. Following was laid down in paragraph 13:
"13.This
is not a case of any particular individual who is being charged with
adoption of unfair means but of the conduct of all the examinees or at
least a vast majority of them at a particular centre. If it is not a
question of charging any one individually with unfair means but to
condemn the examination as ineffective for the purpose it was held. Must
the Board give an opportunity to all the candidates to represent their
cases ? We think not. It was not necessary for the Board to give an
opportunity to the candidates if the examinations as a whole were being
cancelled. The Board had not charged any one with unfair means so that
he could claim to defend himself. The examination was vitiated by
adoption of unfair means on a mass scale. In these circumstances it
would be wrong to insist that the Board must hold a detailed inquiry
into the matter and examine each individual case to satisfy itself which
of the candidates had not adopted unfair means. The examination as a
whole had to go."
Shri C.B. Yadav, learned
Additional Advocate General further submitted that it is within the
power of the State to amend the rules even if the process of selection
has begun. He has placed reliance on the judgment of the Apex Court in
State of M.P. & Ors Vs. Raghuveer Singh Yadav & Ors, (1994) 6
SCC 151. In the said case it was held by the Apex Court that the State
is entitled to withdraw the notification by which it had previously
notified the recruitment and to issue a fresh notification on the basis
of correction by amended rules. He has further placed reliance on the
judgment of the Apex Court in Yogesh Kumar & Ors Vs. Govt. of NCT,
Delhi & Ors (2003) 3 SCC 548. The Apex Court in the said case laid
down that that it is open to the recruitment authorities to evolve a
policy of recruitment and to decide the source from which the
recruitment is to be made.
The case of Devendra Singh
(supra) has already been noted above. The last case relied on by Shri
C.B. Yadav, learned Additional Advocate General is Union of India Vs.
Pushpa Rani & Ors, 2008 (9) SCC 242. The Apex Court in the said case
laid down that the matter relating to source/mode of recruitment and
qualifications, criteria of selection and evaluation of service records
of the employees falls within the exclusive domain of the employer. It
was further held by the Apex Court that the judicial review comes into
play only after the State's action is contrary to constitutional or
statutory provision. Following was laid down in paragraph 37.
"37.
Before parting with this aspect of the case, we consider it necessary
to reiterate the settled legal position that matters relating to
creation and abolition of posts, formation and structuring/restructuring
of cadres, prescribing the source/mode of recruitment and
qualifications, criteria of selection, evaluation of service records of
the employees fall within the exclusive domain of the employer. What
steps should be taken for improving efficiency of the administration is
also the preserve of the employer. The power of judicial review can be
exercised in such matters only if it is shown that the action of the
employer is contrary to any constitutional or statutory provision or is
patently arbitrary or is vitiated due to mala fides. The Court cannot
sit in appeal over the judgment of the employer and ordain that a
particular post be filled by direct recruitment or promotion or by
transfer. The Court has no role in determining the methodology of
recruitment or laying down the criteria of selection. It is also not
open the Court to make comparative evaluation of the merit of the
candidates. The Court cannot suggest the manner in which the employer
should structure or restructure the cadres for the purpose of improving
efficiency of administration."
There
cannot be any dispute to the proposition as noted above. Present is not
a case where the Court is determining the methodology of the
recruitment or laying down the criteria for selection. The issue is as
to whether the State Government which having adopted the criteria for
selection as laid down by the National Council for Teacher Education,
could have changed the criteria for selection of teachers arbitrarily,
more so, when the notification dated 23.8.2010 and guidelines dated
11.2.2011 issued by the National Council for Teacher Education are
binding on the State.
As noted above, the learned
Single Judge has held in the impugned judgment that after the start of
process of selection it was not open for the State to change the
criteria for selection. Reliance has been placed by the learned Single
Judge on the judgment of P. Mahendran & Ors Vs. State of Karnataka
& Ors, AIR 1990 SC 405.
Shri Ashok Khare, learned
Senior Counsel, appearing on behalf of the appellants has placed
reliance on two judgments of the Apex Court in A.A. Calton Vs. Director
of Education & Anr, (1983) 3 SCC 33 and N.T. Devin Katti Vs.
Karnataka Public Service Commission & Ors, (1990) 3 SCC 157, for the
proposition that the 15th amendment rules would be applicable to
selection proceedings initiated subsequent to said rules.
Shri
Rahul Agarwal placed reliance on the judgment of the Apex Court in Tej
Prakash Pathak & Ors Vs. Rajasthan High Court & Ors, (2013) 4
SCC 540. In the said case the question as to whether the procedure for
selection can be changed by the State, has been referred to a larger
bench for an authoritative pronouncement. Noticing the relevant
judgments, the Apex Court in paragraph 15 has observed following:
"15.
No doubt it is a salutary principle not to permit the State or its
instrumentalities to tinker with the "rules of the game" insofar as the
prescription of eligibility criteria is concerned as was done in the
case of C. Channabasavaiah v. State of Mysore [AIR 1965 SC 1293] etc. in
order to avoid manipulation of the recruitment process and its results.
Whether such a principle should be applied in the context of the "rules
of the game" stipulating the procedure for selection more particularly
when the change sought is to impose a more rigorous scrutiny for
selection requires an authoritative pronouncement of a larger Bench of
this Court. We, therefore, order that the matter be placed before the
Hon'ble Chief Justice of India for appropriate orders in this regard."
As
noted above, we having already considered the 15th amendment rules, and
having come to the conclusion that the 15th amendment rules being
arbitrary and unreasonable is unsustainable, it is not necessary to
enter into the issues as to whether the State could have amended the
Rules, 1981 after the start of the process of selection.
In
view of the foregoing discussions, we conclude that the decision of the
State Government to change the criteria of selection by restoring the
criteria of selection as prevalent prior to 12th amendment rules was not
in conformity with law. The 15th amendment rules, in so far as Rule
14(3) as well as the Government Order dated 31.8.2012 were also not
sustainable.
Reliefs.
Now
comes the question as to what reliefs the appellants are entitled to.
It is to be noted that the learned Single Judge has denied the reliefs
to the appellants only on the ground that the advertisement dated
30.11.2011 mentions the posts of Teachers as "Trainee Teachers", whereas
there is no cadre of Trainee Teachers under the Rules, 1981, the
notification itself was bad. The learned Single Judge although accepted
the case of the appellants that the decision of the Government by
Government Order dated 26.7.2012 was not in conformity with law, but
denied the relief giving following reasons:
"However, no relief
can be granted to the petitioners, inasmuch as this Court has come to
the conclusion that the advertisement dated 30.11.2011 itself was bad
and therefore no direction can be issued by this Court to complete the
process of selection in terms of the advertisement dated 30.11.2011, as
it would only amount to perpetuating the illegalities, which can never
be purpose of the order of a writ Court.
In such circumstances,
although this Court has come to the conclusion that the reasons
mentioned in the order of the State Government for cancelling the
advertisement are not in accordance with law, yet no relief can be
granted to the petitioners for the reasons recorded."
We
having already held that the advertisement dated 30.11.2011, for
selection of teachers on 72825 posts was advertised for existing cadre
under the Rules, 1981. 72825 vacancies in the existing cadre having
already been determined, the reason for denying the reliefs to the
petitioners/appellants by the learned Single Judge is unsustainable. The
appointment of candidates having B.Ed qualification with certain
percentage of marks in the graduation is a relaxation granted under the
notification dated 23.8.2010 for a limited period. The Central
Government vide its notification dated 10.9.2012 issued under Section 23
(2) has extended the period of candidates mentioned in para 3
sub-clause (1) of the notification dated 23.8.2010 till 31.3.2014. The
State Government has to complete the process of selection and make
appointment of the candidates within the time allowed by the Central
Government.
There are about 1.25 lacs primary schools in the
State of U.P. run by the U.P. Basic Shiksha Parishad. 2.70 lacs posts of
teachers being lying vacant, the State Government cannot be said to
have complied its statutory obligation as laid down under the Act, 2009.
The process for recruitment of B.Ed teachers against the 72825
vacancies was initiated vide advertisement dated 30.11.2011 after
amending the rules in accordance with law.
By an order dated
04.1.2012, the process for recruitment of B.Ed teachers was stayed by
this Court in Writ Petition No.76039/2011, which petition has already
been dismissed by this Court. There is thus no legal impediment in
proceeding with the selection initiated by the advertisement dated
30.11.2011 as modified on 20.12.2011.
In the result all the Special Appeals are allowed to the following extent:
1.
The Government Order dated 26.7.2011 insofar as it directs for
restoration of criteria for selection as was prevalent prior to 12th
amendment rules is set-aside.
2.The U.P. Basic Education
(Teachers) Service Amendment Rules, 2012 (15th Amendment Rules dated
31.8.2012) in so far as Rule 14 (3) is concerned is declared to be
ultra-vires to Article 14 of the Constitution and are struck down.
Consequently, the Government Order dated 31.8.2012 as well as the
communication dated 31.8.2012 issued by the board of Basic Education are
set-aside.
3. Respondents
are directed to proceed and conclude the selection as per the
advertisement dated 30.11.2011 as modified on 20.12.2011 to its logical
end within the time allowed by the Central Government vide its
notification issued under Section 23 (2) of the Act, 2009.
4. The judgment of the learned Single Judge is modified to the above extent.
The parties shall bear their own costs.
Order Date :- 20.11.2013
LA/Sandeep
Source :
http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2927338
