UPTET : Similar Case Happens in BTC Selection, Entire Examination NOT Cancelled as Demanded , And Justice in Favour of Genuine Candidates Who didn't have fault
Court also said Disciplinary Action against -
State Government shall take expeditious steps to give finality in respect to disciplinary proceedings against the erring officials and shall pass appropriate orders which may prove to be a lesson not only to them but to others also
See Case Detaisl :
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 32
Reserved on 02.03.2007
Delivered on 31.08.2007
1. Special Appeal No. 553 of 2006, Santosh Kumar Shukla & others Vs. State of U.P. & others
Connected with
2. Special Appeal No. 444 of 2006, Rishidhar Dwivedi & others Vs. State Council for Educational Training & others
3. Special Appeal No. 452 of 2007, Amresh Kumar Pandey & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
4. Special Appeal No. 568 of 2006, Alok Singh & others Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
5. Special Appeal No. 585 of 2006, Sanjay Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
6. Special Appeal No. 593 of 2006, Awadhesh Kumar & others Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
7. Special Appeal No. 595 of 2006, Amit Gupta & others Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
8. Special Appeal No. 596 of 2006, Anish Kumar Tiwari & others Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
9. Special Appeal No. 606 of 2006, Bhuneshwari Singh Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
10. Special Appeal No. 612 of 2006, Bhairavi Srivastava Vs. State of U.P. & another
11. Special Appeal No. 618 of 2006, Ajit Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
12. Special Appeal No. 619 of 2006, Shailendra Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
13. Special Appeal No. 620 of 2006, Anita Yadav & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
14. Special Appeal No. 622 of 2006, Udaya Kant Dubey & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
15. Special Appeal No. 623 of 2006, Ram Kailash Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
16. Special Appeal No. 624 of 2006, Manoj Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
17. Special Appeal No. 627 of 2006, Shailendra Singh Chauhan & others Vs. State of U.P. & others
18. Special Appeal No. 628 of 2006, Brij Kishore & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
19. Special Appeal No. 641 of 2006, Sudha Devi & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
20. Special Appeal No. 646 of 2006, Manoj Kumar Sharma & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
21. Special Appeal No. 647 of 2006, Shiba Kumari & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
22. Special Appeal No. 651 of 2006, Harish Kumar Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
23. Special Appeal No. 652 of 2006, Dharm Prakash Gangwar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
24. Special Appeal No. 665 of 2006, Rajendra Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
25. Special Appeal No. 669 of 2006, Rajendra Kumar Chauhan & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
26. Special Appeal No. 671 of 2006, Gyanendra Singh Baghel & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
27. Special Appeal No. 680 of 2006, Mamita Sharma Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
28. Special Appeal No. 697 of 2006, Rakesh Kumar Pandey & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
29. Special Appeal No. 760 of 2006, Ashwini Kumar Misra & others Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
30. Special Appeal No. 774 of 2006, Sharda Rai & another Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
31. Special Appeal No. 782 of 2006, Smt. Preeti Katiyar Vs. State of U.P. & others
32. Special Appeal No. 783 of 2006, Manoj Kumar Sharma & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
33. Special Appeal No. 784 of 2006, Jeetendra Prasad Bharti & others Vs. State of U.P. & others
34. Special Appeal No. 785 of 2006, Praveen Sharma & others Vs. The State Council for Education Training & others
35. Special Appeal No. 789 of 2006, Pushpendra Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
36. Special Appeal No. 827 of 2006, Suresh Kumar Yadav & others Vs. State of U.P. & others
37. Special Appeal No. 828 of 2006, Rajesh Kumar Yadav & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
38. Special Appeal No. 829 of 2006, Ram Niwas Yadav Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
39. Special Appeal No. 830 of 2006, Vinod Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
40. Special Appeal No. 831 of 2006, Chanchala Pandey & another Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
41. Special Appeal No. 947 of 2006, Anand Kumar Upadhyay & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
42. Special Appeal No. 974 of 2006, Ramesh Kumar Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
43. Special Appeal No. 1041 of 2006, Abhinandan Singh Yadav Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
44. Special Appeal No. 1042 of 2006, Phool Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
45. Special Appeal No. 1043 of 2006, Sarvesh Kumar Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
46. Special Appeal No. 1044 of 2006, Jitendra Kumar Saxena & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
47. Special Appeal No. 1046 of 2006, Pradip Kumar Rathi & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
48. Special Appeal No. 1047 of 2006, Archana Jaiswar & others Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
49. Special Appeal No. 1048 of 2006, Uma Shanker & another Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
50. Special Appeal No. 1049 of 2006, Akhilesh Kumar Singh & others Vs. State of U.P. State of U.P. through Secretary, Shiksha Anubhag-1 & others
51. Special Appeal No. 1050 of 2006, Vikramajeet Dubey Vs. State of U.P. & others
52. Special Appeal No. 1051 of 2006, Braj Kant Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
53. Special Appeal No. 1052 of 2006, Jitendra Kumar & othersVs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
54. Special Appeal No. 1090 of 2006, Smt. Maya Singh & another Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
55. Special Appeal No. 1122 of 2006, Kripa Shanker Maurya & others Vs. The State Council for Educational Research & Training & others
56. Special Appeal No. 1124 of 2006, Om Prakash Sharma & others Vs. The State Council for Educational Research & Training & others
57. Special Appeal No. 1195 of 2006, Chandra Shekhar Maurya & others Vs. State of U.P. & others
58. Special Appeal No. 1196 of 2006, Narendra Pratap Singh Sikrawar & others Vs. The State Council for Educational Training & others
59. Special Appeal No. 1247 of 2006, Amresh Chaudhari & others Vs. The State Council for Educational Research & Training & others
60. Special Appeal No. 1248 of 2006, Amit Pathak & others Vs. State of U.P. & others
61. Special Appeal No. 1249 of 2006, Meeta Verma Vs. State of U.P. & others
62. Special Appeal No. 1250 of 2006, Neelam Srivas & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
63. Special Appeal No. 1251 of 2006, Pratibha Bilgaiyan & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
64. Special Appeal No. 1252 of 2006, Sanjeev Kumar Tarriya & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
65. Special Appeal No. 1253 of 2006, Sachin Dev & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
66. Special Appeal No. 1334 of 2006, Manju Lata Verma & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
67. Special Appeal No. 1335 of 2006, Ram Bachan & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
68. Special Appeal No. 1336 of 2006, Akshay Kumar Singh & others Vs. The State Council For Educational Training & others
69. Special Appeal No. 1337 of 2006, Manju Lata Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
70. Special Appeal No. 1340 of 2006, Pushpendra Kumar Pandey & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
71. Special Appeal No. 1367 of 2006, Rajesh Kant & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
72. Special Appeal No. 1483 of 2006, Usha Kumari Sonkar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
73. Special Appeal No. 1487 of 2006, Reeta Tripathi Vs. The State Council for Educational Research & Training & others
74. Special Appeal No. 1521 of 2006, Aneeta & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
75. Special Appeal No. 1522 of 2006, Amla Chauhan & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
76. Special Appeal No. 1523 of 2006, Gayanti Yadav & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
77. Special Appeal No. 1524 of 2006, Jeetendra Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
78. Special Appeal No. 1666 of 2006, Anand Kishor Singh Vs. State of U.P. & others
79. Special Appeal No. 13 of 2007, Sudha Mishra Vs. The State Council for Educational Research & Training & others
80. Special Appeal No. 442 of 2007, Puranjay Rai & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
81. Special Appeal No. 443 of 2007, Namrata Rai Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
82. Special Appeal No. 445 of 2007, Jayant Kumar Singh Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
83. Special Appeal No. 446 of 2007, Km. Kusum & others Vs. State of U.P. & others
84. Special Appeal No. 447 of 2007, Rajesh Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
85. Special Appeal No. 448 of 2007, Sanjeev Kumar Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
86. Special Appeal No. 449 of 2007, Satya Prakash Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
87. Special Appeal No. 450 of 2007, Rudra Kumar & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
88. Special Appeal No. 451 of 2007, Sanjay Kumar Singh & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
89. Special Appeal No. 453 of 2007, Bandana Mishra & others Vs. State of U.P. through Secretary, Shiksha Anubhag-1 & others
Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
All these intra Court appeals arise out of a common judgment dated 24.4.2006 of the Hon'ble Single Judge dismissing writ petitions of all these appellants. Since the questions of fact and law involved in all these appeals are similar, as requested and agreed by the learned counsels for the parties, the same have been heard together and are being decided by this common judgment.
Admission to Basic Teaching Certificate (hereinafter referred to as ''BTC') Course 2001 has given rise to this mass litigation. Experience of the Court in the last few years has shown that any selection or examination leading to employment has not been allowed to be finalized without being involved in a chain of litigation for one or the other reason. No doubt, often the authorities conducting examination, have been found responsible for such a situation, but it is really unfortunate that a large number of cases are coming to this Court everyday involving such matters consuming a good amount of time of this Court in dealing with such matters though the situation could have been avoided by the authorities, if they act with more caution, uprightness, honesty and straightforwardness in conducting such examinations. We are constrained to make these observations since the present one is a glaring example case showing how lack of fairness and honesty by those, responsible for conduct of a fair selection has resulted in spoiling an entrance examination wherein lacs of candidates have participated, and, particularly when about five thousands candidates, after being declared successful have already undergone training for almost two years and now facing dilemma about the validity and correctness of their training and also likely to lose a golden period of their life by undergoing such unfruitful training.
The facts in brief are that the State Government notified BTC Training Entrance Examination, 2001 (hereinafter referred to as ''entrance examination') vide Government Order dated 26th November 2001 authorizing State Council for Education, Research & Training, U.P., Lucknow (hereinafter referred to as ''SCERT') to conduct the said entrance examination. The candidates who succeed in the said entrance examination were to admit for two years' BTC training course to be imparted at District Institute of Education & Training (hereinafter referred to as ''DIET'). The said qualification is recognized for appointment of Assistant Teachers in primary schools, hence the candidates after completion of training would have been entitled to be appointed as Assistant Teachers in primary Schools maintained by Board of Basic Education. SCERT, accordingly, published advertisement on 1.12.2001. The last Date for submission of examination form was 15.12.2001. Written examination was held on 28.4.2002. Since there was some delay in declaring result of the said examination, it appears that some candidates, namely, Ajeet Kumar Singh & others approached the Court and this Court directed the State Government to take a final decision in the matter. Consequently, a letter was issued by the State Government on 12.4.2003 directing the authorities to finalize selection at the earliest. On 3.7.2003, the result of entrance examination was declared wherein all the appellants were declared successful. The Principals of various DIETs were directed to admit successful candidates subject to verification of their testimonials from original record. The candidates including the appellants got admission in DIETs and were imparted BTC training. Written examination at the end of first year of training course was held in May 2004 and the result was declared on 17.8.2004. All the appellants were successful therein and thereafter, were imparted training for the second year course of BTC training. After completion of second year training, written examination as well as practical examination have been held in January 2005, but, thereafter, the result of second year examination was not declared. In the meantime, it appears that some complaints were made regarding large number of irregularities and illegalities in the entrance examination. It appears that the State Government got the matter investigated by Vigilance Department, which submitted its report on 23.7.2005. Pursuant to the vigilance report, wherein large scale of manipulation and irregularities by the officers responsible for conducting the said entrance examination was observed, the State Government suspended the then Director, SCERT vide order dated 29.9.2005 and lodged a first information report on the same date. Further, acting on the said report of Vigilance Department, the State Government issued an order dated 20.10.2005 cancelling entrance examination but directing that the candidates who have already undergone BTC training course, would not be required to undergo a fresh training course if they succeed in the fresh entrance examination to be conducted in 2005. Aggrieved by the order dated 20.10.2005, whereby the entrance examination itself was cancelled resulting in automatic revocation of entire training course undergone by the appellants unless they appear and succeed in the fresh entrance test to be conducted by the State Government, the appellants preferred a number of writ petitions before this Court, which have been dismissed by Hon'ble Single Judge after hearing the parties vide judgment impugned in these appeals.
Sri V.K.S. Chaudhary, Senior Advocate, assisted by Sri P.N. Tripathi appearing in Special Appeals No. 1367 of 2006 and 947 of 2006 assailed the impugned judgment and the State Government's order dated 20.10.2005 contending that since the pre examination irregularities stood condoned by the State Government's policy decision dated 2.6.2003 accepting whereto the SCERT declared result of the entrance examination on 3.7.2003 therefore, the respondents are estopped from taking a contrary decision subsequently and that too after almost two years when the appellants have already undergone and virtually completed the entire training of BTC course. The impugned order is vitiated being against the principle of estoppel. The report of vigilance could not have been acted upon since it was not an enquiry in respect to the alleged irregularities of entrance examination and even otherwise the matter was beyond the purview of the Vigilance Establishment Act, 1961 (hereinafter referred to as ''1961 Act'). Since the impugned order has been passed by the State Government solely relying upon the Vigilance Department report though it is outside the purview of the 1961 Act, the order is wholly without jurisdiction.
Sri S.K. Kalia, Senior Advocate, assisted by V.B. Kalia, Advocate, appearing in Special Appeals no. 947 of 2006 besides adopting the arguments of Sri Chaudhary, further contended that the State Government's order is in violation of principle of natural justice, since the selection has been cancelled without giving any opportunity to the appellants though the said order seriously and adversely affects all the appellants. He further contended that even from a perusal of the vigilance report and other material available with the Government, it cannot be said that the irregularities, if any, were so large scale and wide spread so as to warrant cancellation of the entire examination. The alleged irregularities were identifiable and, therefore, selection of only such candidates should have been cancelled which is found to be irregular or illegal but that would not have vitiated the entire selection. In support thereof, he placed reliance on the Apex Court's Judgment in Union of India Vs. O. Chakradhar, 2002 (3) SCC 146 and Union of India Vs. Rajesh P.U., Puthuvalnikathu & another, 2003 (7) SCC 285. He further contended that even the vigilance did not conduct any thorough investigation of the entire entrance examination and its report is perfunctory, incomplete. It has considered only a few cases like sample cases and, therefore, cannot be the basis for cancelling the entire entrance examination. Had the appellants been afforded opportunity, they could have shown to the authorities that there was no wide spread illegality or irregularity in the selection and none in their individual cases and, therefore, the appellants have been seriously prejudiced by denial of opportunity. The order is thus vitiated being in violation of principle of natural justice. He also placed reliance on Apex Court's Judgment in S.L. Kapoor v. Jagmohan, AIR 1981 SC 136, Olga Tellis & others Vs. Bombay Municipal Corporation & others, AIR 1986 SC 180 and Maharishi Dayananad University Vs. M.L.R. Saraswati College of Education, 2000 (7) SCC 746. He also contended that after declaration of result, the appellants were admitted for training course and have spent valuable time of two years and at this stage, an order cancelling the entrance examination is wholly unjust, arbitrary and discriminatory as it wipes out two years' period during which the appellants have undergone training without their being any fault on their part and, therefore, the impugned order is patently illegal. In order to show several inconsistencies in the enquiry report of vigilance department, he also placed before the Court the report and we propose to deal with this aspect of the matter later on at appropriate stage. At this stage, this much is suffice to say that his contention, by referring to the vigilance report, is that the report on the face of it is such which could not have furnished a relevant material to form an opinion that the entrance examination is vitiated on account of alleged large scale illegalities/irregularities, which warrants cancellation of the entire entrance examination and, therefore, the impugned order is patently illegal having been passed without application of mind and the Hon'ble Single Judge has erred in law in taking a view otherwise.
Sri Shailendra, Advocate, has argued on behalf of the appellants in Special Appeal No. 627 of 2006, and while adopting the arguments of learned Senior counsels Sri Chaudhary and Kalia, he further contended that in the facts and circumstances of the case, the balance of equity lies in favour of the appellants for the reason that many of the appellants were such who were already serving elsewhere, but in the hope to get a better employment, left their service and sought admission in BTC Course since it would have ensured appointment as Assistant Teacher in Primary Schools maintained by the Board of Basic Education. During the two years period of undergone training, they could not apply for any other selection since their testimonials were kept by DIETs and the appellants were confined to the training course of BTC itself. Now after completion of that course, they cannot be told that their very entry in the training course was illegal and, therefore, is cancelled. Thus, the entire action is wholly unjust, illegal and arbitrary. In any case, the entire selection could not have been cancelled. He also questioned the status of vigilance report and application of the said report in the light of the provisions of 1961 Act. He also placed reliance on the Apex Court's judgment as referred to above and further cited Nagraj Shivarao Karjagi Vs. Syndicate Bank & others, 1991 (3) SCC 219 and Syed Rahimuddin Vs. Director General, CSIR & others, 2001 (9) SCC 575.
Sri Ashok Khare, Senior Advocate, assisted by Sri P.N. Ojha, Advocate, argued in Special Apepal No. 568 of 2006, 596 of 2006 and 595 of 2006. Adopting the arguments of other learned counsels, he further submitted that doctrine of estopple and waiver apply for the reason that the State Government was aware of the alleged irregularities as early as in May 2003 when the Registrar, SCERT sent letter dated 17.5.2003 and 23.5.2003, yet it allowed result to be declared finally and the candidates were allowed to take admission in BTC Course. They have also completed training of BTC Course. After such a long time, it was not open to the State Government to cancel the very entrance examination. He contended that the power, even if is discretionary, could have been exercised in a reasonable time and the very exercise of power unreasonably makes it arbitrary exercise of power violating Article 14 of the Constitution and, therefore, the order is liable to be set aside on this ground alone. He also placed before us the vigilance report in order to show that certain aspects termed as irregularities and illegalities, by no stretch of imagination can be said to be so and, therefore, he submits that reliance placed by the State Government on such report in passing the impugned order vitiates the order impugned in the writ petition.
Sri R.K. Ojha, appearing for the appellants in Special Appeal No. 947 of 2006 contended that considering the facts and circumstances and the future of the candidates, who are before the Court and who are sought to be penalized for no fault on their part, in equitable jurisdiction, this Court should interfere and set aside the order passed by the State Government cancelling the said examination particularly when the equity lies in favour of the appellants.
Sri Abhishek Srivastava, advocate, appearing in Special Appeal No. 778 of 2006 submitted that Sri R.P. Verma, Joint Director, submitted enquiry report in respect to the examination wherein he found only 164 candidates' selection to be irregular or vitiated. The vigilance report has also basically followed the said report of Sri R.P. Verma and there is nothing to show that the number of erring candidates is more than what has been pointed by Sri R.P. Verma. He, therefore, contended that the act of the State in passing impugned order fails to satisfy the test of fairness since it lacks the existence of material. The impugned order has been passed on non est, flimsy and imaginary grounds. He also contended that a right accrued in favour of the appellants on completion of the training and since the alleged malpractices cannot be attributed to the appellants, their selection could not have been cancelled and that too without giving any opportunity.
