Courts Update Allahabad HC directs the state to release examination results...

Allahabad HC directs the state to release examination results of overage candidates selected in LT Grade Assistant Teacher Recruitment 2018

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Allahabad Aug 12(ILNS): Allahabad High Court directed the state government to release the examination results of such candidates selected in LT Grade Assistant Teacher Recruitment 2018 in Government Secondary Schools who were overage at the time of issue of advertisement.

A Single Bench comprising of Justice Ashwani Kumar Mishra passed this order while hearing a petition filed by Divya Prakash Mishra And 32 Others.

All the writ petitioners have applied for appointment to the post of Assistant Teachers (L.T. Grade) in Secondary Schools run by the State of U.P. which are recognized under the U.P. Intermediate Education Act, 1921.

“Appointments to the posts are governed by the Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 (hereinafter referred to as the ‘Rules of 1983’). These rules have also been amended from time to time.

On February 28, 2014, vide Third Amendment Rules introduced in the Rules of 1983, the weightage given to Post Graduate Qualification was done away with. The process of recruitment was thereafter initiated on July 22, 2014, for filling up 6645 posts of Assistant Teachers (L.T. Grade) in Government Secondary Schools”, the Court noted.

The Court said that this recruitment process apparently faced multiple difficulties and only part of the vacancies could be filled against the advertised 6645 vacancies. Considering the difficulties faced in undertaking recruitment, the State introduced Fourth Amendment Rules on October 19, 2016, and the Regional Cadre for the service was substituted with State Cadre. After including leftover vacancies, a fresh advertisement came to be issued on December 19, 2016, inviting applications to fill up 5342 vacancies of Assistant Teachers (L.T. Grade) in Government Secondary Schools.

The petition said that Rule 10 of the Rules of 1983 required an applicant to be above 21 years of age as of July 1, 2016, but below the age of 40 years on that day. This recruitment, however, could not be concluded apparently due to a change in the recruitment policy and a decision was taken to discontinue the recruitment. The advertisement was canceled.

The Rules of 1983 were amended yet again vide Fifth Amendment Rules, 2017 as per which the appointments were to be made through the U.P. Public Service Commission by holding a written examination. A fresh advertisement came to be issued on 15th March 2018 advertising 10768 posts of Assistant Teachers (L.T. Grade) in Government Secondary Schools. These posts apparently included 5342 vacancies advertised earlier on December 19, 2016, against which the petitioners had applied.

Petitioners, who were eligible and had already applied against the previous Advertisement, dated December 19, 2016, however, became overage by the time fresh Advertisement was published on March 15, 2018.

It was contested for the vacancy on the post of Assistant Teacher (L.T. Grade) had not only arisen when petitioners were eligible in terms of age but were also advertised and, therefore, petitioners acquired the right to be considered for appointment against such advertised vacancy and such right could not be defeated in the manner as has been done by the State.

Similar protection has been granted to other petitioners. The petitioners, consequently, have participated in the recruitment initiated vide Advertisement dated March 15, 2018, but their results have not been declared on account of pendency of the present bunch of writ petitions and the orders passed therein.

It is urged that the writ petitioners who have secured selection on the strength of their merit against Advertisement, dated March 15, 2018, are entitled to a declaration of their results and consequential appointment. Upon a specific query made, learned counsel for the Commission has produced written instructions from the Commission as per which 14 petitioners in this bunch of cases have qualified the exam, and while the result has been withheld in respect of two such candidates, the remaining 12 petitioners in the bunch of cases are selected provisionally subject to the outcome of these cases.

A counter affidavit has been filed on behalf of the State in which it is stated that the petitioners do not get any right to age relaxation merely on the strength of their previous application against Advertisement, dated December 19, 2016, and the petitioners cannot, therefore, claim relaxation in maximum age prescribed in Rule 10.

Petitioners have essentially challenged Advertisement No. A-1/E-1/2018, dated March 15, 2018, in so far as it specifies the maximum age of eligibility as 40 years on July 1, 2018, and to permit them to participate in the selection process initiated for appointment against 9342 vacancies advertised earlier on December 19, 2016.

It is contended that petitioners were well within the zone of eligibility in terms of Advertisement, dated December 19, 2016, and had also applied for appointment against such vacancies and since the advertisement, dated December 19, 2016, has been withdrawn, on account of change of policy introduced by the State, therefore, their right to be considered against vacancies already notified on December 19, 2016, cannot be taken away by the State, even if the policy to discontinue the previous recruitment initiated on December 19, 2016, and re-advertised the post on March 15, 2018, is upheld.

Recruitment for the post of Assistant Teacher in L.T. Grade has to be made in accordance with the Rules of 1983. These rules have been amended from time to time. The Court in the case of Himanshu Shukla and another Vs. State of U.P. and others, writ petition decided on April 13, 2018, while upholding the change of policy in recruitment has traced the amendments, which came to be made in the Rules of 1983, from time to time.

The Court observed that Two distinct factual scenarios are noticed in the aforesaid judgments, which need to be carefully examined. The first urgency is where vacancies have arisen, but recruitment itself has not been initiated. The second exigency is where the vacancy arises and recruitment has also commenced, but for justifiable grounds, the recruitment exercise is canceled before issuance of the select list and the recruitment process is initiated, afresh, as per the amended policy/rules.

Position in law, however, may not be the same in the second exigency where the recruitment process is also initiated upon accrual of vacancy. Once the advertisement is issued and the candidate applies, the right of consideration in terms of Article 16 of the Constitution of India would arise in favor of such a candidate. The Courts while affirming the right of the employer to cancel the recruitment and initiating the recruitment afresh have recognized a limited right of age relaxation in certain circumstances. This aspect does not appear to have been highlighted before this Court in Sunil Dutt Tripathi’s case.

In view of the above discussions, it is apparent that the distinction between a case where vacancy arising was not advertised and where vacancy was advertised but the recruitment was canceled to be followed by fresh recruitment rendering the applicants overage in the subsequent recruitment has been overlooked by this Court in Sunil Dutt Tripathi (supra) and, therefore, in view of the subsequent judgment of the Supreme Court in Ramjit Singh Kardam (supra), this Court is inclined to recognize the right of the petitioners to claim age relaxation as they were within age and had applied for recruitment pursuant to the earlier advertisement which got canceled, the court further observed.

“Following the course made permissible in para 5 of the Supreme Court Judgment in D. Dastagiri (supra) as well as para 27 of the Supreme Court Judgment in State of M.P. Vs. Sanjay Kumar Pathak, I am of the considered opinion that even if previous recruitment was canceled and change of policy by the State has been affirmed in the case of Himanshu Shukla (supra), which judgment has otherwise been affirmed with the dismissal of Special Appeal and Special Leave Petitions, the applicants would be entitled to the limited protection of applying afresh against advertisement dated March 15, 2018, and also from the age bar imposed in accordance with Rule 10 of the Rules of 1983”, the order reads.

“Ordinarily the Court would have referred the matter to State Government for grant of age relaxation in terms of Rule 3 of the Rules of 1992 but as this Court has already permitted them to appear provisionally for selection under its interim order and certain petitioners have also secured their selection on the strength of their merits it would be appropriate to direct declaration of their result notwithstanding the fact that they have become overage under the new advertisement. This direction, however, is on the facts of this case and shall not be treated as a precedent in other cases. The Respondent Commission is thus directed to declare the result of writ petitioners who have appeared against advertisement dated March 15, 2018, and to consider their case for an appointment, if they are selected and fulfill other eligibility (except age).

Such consideration would be made within a period of two months from today”, the Court ordered, and disposed of the Writ Petitions./ILNS/AP/SNG

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