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2015 Supreme(All) 850
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
SHIV KUMAR PATHAK AND OTHERS ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition Nos. 57476 of 2013, 28003, 28977 of 2015, 58712, 62241, 50787, 57236 of 2013, 2999, 15541, 628 of 2015, decided on 18th August, 2015)
Counsel :
Ashok Khare, Siddharth Khare, Kshetresh Chandra Shukla, Anil Kumar Aditya, Ajay Kumar Pandey, D.P. Singh,Vishnu Gupta, Shailesh Upadhyay, Radha Kant Ojha, Avinash ChandraSrivastav, Abhishek Srivastava, Ashish Tripathi and Ashish Kumar Singh for the Petitioners; C.S.C., A.K. Yadav, Shravan Kumar Pandey, Deo Dayal, B.P. Singh, Sayed Nadeem Ahmad, Sunil Kumar Singh, Rashmi Tripathi, C.K. Rai, K.K. Chand and Manu Singh for the Respondents.
Headnote:Constitution of India, 1950—Articles 15(3), 16(3) and 226—U.P. Basic Education (Teachers) Service (Fifteen Amendment) Rules, 2012—Rule 14(3)—U.P. Basic Education (Teachers) Service Rules, 1981—Rule 14—Appointment—Assistant Teachers—On the basis of academic qualification and weightage to scores obtained by candidates in TET—Whether respondents-authorities are justified in preparing list of selected candidates in accordance with Rule 14(3) as substituted by Fifteenth Amendment Rules, 2012 read with Rule 14(3) of Sixteenth Amendment Rules, 2012—Rule 14(3) of 15th Amendment Rules of 2012 in its entirety having been struck down, thus inoperative—Held, right to promotion to post of Assistant Teacher has not been denied at all—Holding of TET was not under 1981 Rules while recruitment under 1981 Rules commences with the advertisement and is different entirely—Benefit of reservation to who have passed TET examination, taking advantage of reservation with lower marks may be considered against vacancies available for of general category advertised for recruitment under 1981 Rules—Directions issued to respondents to re-prepare the list of candidates under Rule 14 of 1981 Rules—Further directions issued. [Paras 20 to 94]
Hon’ble Sudhir Agarwal, J.—Heard Sri Ashok Khare, and Sri Radha Kant Ojha, learned Senior Advocates, appearing for petitioners, learned Standing Counsel for State-respondents, Sri A.K. Yadav, Advocate, for Basic Shiksha Parishad; and, Sri Anoop Trivedi, Sri Seemant Singh, Sri Abhishek Srivastava and Sri S.K. Mishra, Advocates, who have appeared for interveners/selected candidates, in bunch of these cases.
2. Though all these writ petitions are connected and have been nominated to this Bench by Hon’ble the Chief Justice for adjudication, but having heard learned counsels for parties, I find that these writ petitions need be categorised in five groups, namely, Writ Petitions No. 57476 of 2013, 28003 of 2015 and 28977 of 2015 are placed in ‘Group-A’; Writ Petitions No. 58712 of 2013, 62241 of 2013 and 50787 of 2013 are placed in ‘Group-B’; Writ Petitions No. 57236 of 2013 and 2999 of 2015 in ‘Group-C’; Writ Petition No. 15541 of 2015 in ‘Group-D’; and, Writ Petition No. 628 of 2015 in ‘Group-E’. In this judgment, I shall deal with these matters groupwise.
Group-A:
3. Writ Petition No. 57476 of 2013 (hereinafter referred to as “First Petition, Group-A”) has been filed under Article 226 of the Constitution of India by 12 petitioners seeking a writ of mandamus directing for preparation of merit list for recruitment to the post of Assistant Teachers in Senior Basic School/Head Master in Junior Basic Schools, not only on the basis of academic qualification, but also by giving weightage to the scores obtained by candidates in ‘Teachers Eligibility Test” (hereinafter referred to as “TET”).
4. Sri Ashok Khare, learned Senior Advocate, contended that though in the writ petition, as was drafted and filed, the petitioners have challenged Notifications dated 30.8.2012 and 5.12.2012 (Annexures 1 and 3 to the writ petition), i.e., U.P. Basic Education (Teachers) Service (Fifteenth Amendment) Rules, 2012 (hereinafter referred to as “Fifteenth Amendment Rules, 2012”) and U.P. Basic Education (Teachers) Service (Sixteenth Amendment) Rules, 2012 (hereinafter referred to as “Sixteenth Amendment Rules, 2012”), but he is not pressing the said relief in respect of Fifteenth Amendment Rules, 2012 for the reason that the offending provision having already been struck down, the Court has to consider only its consequential effect and to see whether a provision, struck down by this Court being ultra vires, can be allowed to operate pursuant to the aforesaid amending Rules, and if not, then to the extent amending Rules refer to a provision which has been declared ultra vires, the amending Rules to that extent are otiose/redundant/inoperative and have to be ignored by authorities concerned and that is how it is not necessary for petitioner to seek any relief for declaring the amending Rule of Fifteenth Amendment Rules, 2012 ultra vires. This Court has to declare only that part of Amending Rule, which refers to a provision which has already been struck down by this Court, inoperative and redundant, and respondents-authorities, would be required to prepare merit list accordingly, i.e., by ignoring such provision. In the alternative, he submitted that Rule 14 (3)(a) of Sixteenth Amendment Rules, 2012, being pari materia to Rule 14 (3) of Sixteenth Amendment Rules, 2012 suffers from the same vice and hence for the reasons given by Division Bench in its judgment dated 20.11.2013 in Special Appeal (Defective) No. 237 of 2013 (Shiv Kumar Pathak and others v. State of U.P. and others), it is also ultra vires and, hence, liable to be struck down.
5. Writ petition No. 28003 of 2015 (hereinafter referred to as “Second Petition, Group-A”) has been filed at the instance of five petitioners, namely, Umesh Kumar Singh, Saroj Kumar Singh, Vimal Kumar Tiwari, Sanjay Kumar Verma and Dhananjay Singh and therein also the relief sought is similar to that as sought in
