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Allahabad, Nov 2 (ILNS) Allahabad High Court on October 29 directed the Uttar Pradesh Board of Basic Education to give no objection certificate to such candidates involved in the recruitment of 69 thousand assistant teachers, who are already assistant teachers in the Basic Education Department and have also been selected in the recruitment of 69 thousand assistant teachers.

A Single Judge Bench of Justice Suneet Kumar passed this order while hearing a petition filed by Rohit Kumar And 56 Others.

The Petitioners are working in Junior Basic Schools in various districts of UP, run and managed by the Uttar Pradesh Board of Basic Education. Petitioners came to be selected and appointed pursuant to Assistant Teacher Recruitment Examination-2018.

The Petitioners have raised a challenge to the legality and validity of the Government Order dated December4, 2020, wherein it, denied issuance of No-Objection Certificate to the working teachers. A further direction has been sought directing the respondents to issue NOC to the petitioners and to appoint them in the district of their choice.

The facts of the case are that by the Government Order dated December 01, 2019, applications were invited by the Board for Assistant Teacher Recruitment Examination- 2019. Petitioners, being eligible and there being no prohibition/bar in the Government Order, applied to enable them to improve their merit and procure placement in a district of their choice.

As per Government Order dated January 07, 2019, the candidates belonging to General or open category were to obtain 65% marks, whereas, the candidates under reserved categories (scheduled caste, scheduled tribes and other backward classes) had to secure 60% marks.

As against 69000 vacancies 1,46,060 candidates were successful in securing minimum pass percentage marks. Consequently, thereof, shortlisted candidates were called upon by the Board to make on-line applications for counseling and appointment pursuant to the Government Order dated May 13, 2020.

The counseling was to be held by the Selection Committee in respective districts. The successful candidates already working in Government department, semi -Government department, and the Board was required to submit NOC of their employer.

Accordingly, some of the petitioners obtained NOC from their respective District Basic Education Officers, which subsequently came to be cancelled. The NOC was declined to the other successful Assistant Teachers pursuant to the Government Order dated 4 December 2020.

The grievance of the petitioners is that they were working as Assistant Teachers in different districts of Uttar Pradesh and had appeared in ATRE-2019 to improve their percentage marks so as to enable them to get their preferred choice of district.

It is urged that by the Government Order, petitioners, have been deprived NOC to participate in the counselling for appointment and placement, for the reason that under the Rules governing the Assistant Teachers, there is a provision for securing inter-district transfer.

It is submitted that para-5(1) of the Government Order discriminates against the petitioners, vis-a-vis, other candidates employed/working in other departments of the Government. It is urged that the Government order to that extent is violative of Article 14 and 16 of the Constitution of India.

Respondents have taken a stand that since petitioners are already an Assistant Teacher working in various Junior Basic Schools, they have a right to apply and seek transfer inter district under the Rules.

It is urged that they have rightly not been issued NOC to participate in the counselling or join the district upon selection.

It is further submitted that in the event of NOC being issued to the petitioners, who are working Assistant Teachers, that many post would remain vacant and would not sub-serve the purpose of the Board recruiting teachers.

It is further argued that there is no provision of waiting-list, therefore, vacancies falling vacant as a consequence of petitioners being appointed and allotted district, other than the district of their choice, would be against the object of recruiting Assistant Teachers. The Government Order is fair, just and non discriminatory.

The Court noted that, Rule 14 of Rules, 1981, provides the procedure of selection / determination of vacancies.The Assistant Teachers Recruitment Examination is to be conducted for the determined vacancies and the result is to be communicated to the Secretary of the Board, who thereafter, shall invite applications from successful candidates and recommend the names for counseling as per the option exercised by the candidates to the respective District Basic Education Officer for appointment.

The District Basic Education Officer is the appointing authority of the Assistant Teacher of their respective district. Rules 16, 17 and 19 of Rules, 1981, provide the constitution of Selection Committee; verification of academic record and eligibility of the candidates.

It is clear from the reading of Rule 14 and 17 that option has to be exercised by the candidate district wise, the names of the candidate has to be arranged in accordance with the quality point marks secured by the candidate. Thereafter, cadre wise districts will be allotted to the candidates as per quality points and options. The appointment would, thereafter, be made by the appointing authority in the order in which the names of the candidate stands in the list prepared by the Selection Committee. In other words, the Rules, 1981, mandatorily provides allocation of districts to the selected candidate on quality points based on the option of the candidate.

It is urged that in view of Rules 14 to 19, the State Government has no role and as per the Rules, the process of selection has been conferred upon the Board and the Selection Committee.

In the backdrop of the Rules, it is submitted that the State Government prohibiting the issuance of NOC to the petitioners and allowing NOC to be issued to candidates working in other departments is discriminatory.

It is submitted that the cadre of Assistant Teacher is district wise and inter-district transfer is an exception and not an incidence of service governed by U.P. Basic Education (Teachers) (Posting) Rules, 2008.

The Court further noted that, The Rules, 2008, prohibits a teacher from seeking transfer unless he/she has put in five/three years of service respectively in the district. In other words, it is sought to be urged that a male teacher can seek transfer after putting in five years of service and a female teacher after putting in three years of service. The embargo of 5/3 years would, however, not apply in the case of those teachers who seek transfer in exceptional ‘exigencies’. The option for transfer can be exercised by a teacher only once.

It is urged that petitioners have a right to improve their percentage marks so as to enable them to seek placement in a district of their choice which is part of the selection process.

It is urged that objection being raised by the respondents is without any basis and unreasonable. It is further submitted that issuing NOC to the petitioners would have no bearing on the vacancies being sought to be filled by ATRE-2019.It is admitted by the respondents that as against 69000 vacancies, 1,46,000 candidates have qualified on having obtained minimum percentage marks. Board is bound to recommend 69,000 candidates, including the petitioners who have qualified.

Placement of the petitioners in the district of their choice, on their percentage marks, would have no bearing on the vacancies to be filled up. That many candidates (1,46,000 – 69,000) i.e. 77,000 over and above the vacancies is available with the Board and would have to go without appointment.

It is, therefore, urged that the plea of wait list and of vacancies being not filled up, on petitioners being adjusted/appointed in the districts of their choice would have no bearing on the vacancies. The stand of the respondents is without any foundation or basis.

Counsels appearing for the State and the Board admit that there is no embargo in any of the Government Orders pertaining to ARTE 2019 prohibiting the Assistant Teachers already working in Basic schools from applying for the post of Assistant Teacher.

The Court held that the Government order dated 4 December 2020, is clarificatory in view of the anomalies noted therein. The impugned para 5(1) of the said Government Order seeks to rectify an anomaly and in doing so the Government prohibits Assistant Teachers who are already appointed and working from issuance of NOC from their employer, as against, candidates working in other Government departments. On plain reading, the Government has not clarified, as to how, the selected candidates working as Assistant Teachers are to be adjusted in the district of their choice, but on the contrary the Government Order is in the nature of an injunction restraining the Board and the appointing authority i.e. the District Basic Education Officer from issuing NOC.

The Court observed that the selection and placement, both part of the same recruitment, has been set at naught, insofar, the petitioners are concerned. In my opinion the Government Order to that extend has exceeded the power, authority and jurisdiction conferred upon the Government under Act, 1972 and the Rules, 1981.

Para 5(1) of the Government Order 4 December 2020, is an arbitrary exercise of power having no nexus with the object or clarification it seeks to remedy. Executive action to escape wrath of Article 14 has to be fair, reasonable, non-discriminatory, transparent, non capricious, unbiased, without favouritism, in pursuit of appointment and equitable treatment, the court said.

Accordingly, the Court allowed the writ petition by passing the following orders:(i) Para 5(1) of the Government Order dated 4 December 2020 is declared arbitrary, unreasonable, discriminatory and exceeding the authority conferred under Act, 1972 and Rules, 1981.

(ii) Respondents are directed to issue NOC to all the petitioners recommended by the Selection Committee.

(iii) All those Petitioners prohibited, in view of the Government Order dated 4 December 2020, from participating in the counseling, shall appear for counseling on the date to be notified by the Board.

(iv) Petitioners shall be given appointment and placement of district strictly in accordance with Rules, 1981.

(v) This order shall apply to all the candidates who have not approached this court but are affected by the impugned Government Order.

(vi) The afore-noted orders shall be compiled by the respondents within four weeks from the date of supply of copy of the order./ILNS/AP/SNG/

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