Thursday, January 26, 2023

Assistant Teacher recruitment case: Allahabad High Court refuses to interfere with Single-Bench decision on MRC candidates

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The Allahabad High Court has refused to interfere with the decision of a Single-Judge bench in the case of MRC candidates in the Assistant Teacher recruitment case, paving way for recruitment of 68,500 assistant teachers in the state.

The Division Bench of Acting Chief Justice Munishwar Nath Bhandari and Justice Rohit Ranjan Agarwal further ordered the Basic Education Council to complete the recruitment process in two months. The Court passed this order on a Special Appeal filed by Amit Shekhar Bhardwaj.

The batch of intra-court appeals has been filed under Chapter VIII, Rule 5 of Allahabad High Court Rules, 1952, assailing the judgment dated August 29, 2019 rendered by Single Judge, along with connected writ petitions as well as verdict dated May 13, 2020, deciding review/modification application on the ground that allotment of district to only Meritorious Reserved Candidates (MRC) without passing on benefits to the members of Open General Category having higher merit, amounts to discrimination.

The entire controversy hovers around the claim of candidates belonging to Open General Category claiming benefit, which has been accorded to MRC, pursuant to selection held for the appointment of Assistant Teachers in State of Uttar Pradesh in 2018.

The facts of the case are that the selection/appointment of services of teachers in Basic Schools run by the Board are governed by UP Basic Education Act, 1972 and UP Basic Education (Teachers) Service Rules, 1981, as amended from time to time. Prior to Uttar Pradesh Basic Education Service Rules, 2017, selection/appointment of Assistant Teacher was made on the basis of quality points of academic and training qualifications.

On November 9, 2017, the state government notified Uttar Pradesh Basic Education Service Rules, 2017 and incorporated a written examination known as Assistant Teacher Recruitment Examination (ATRE), passing which was compulsory for appointment as Assistant Teacher.

On February 8, 2018, the state government notified Twenty-First Amendment Rules, 2018, abolishing district preference given to candidates having passed their training from the respective districts. The state government initiated a process for recruitment of 68,500 Assistant Teachers and issued a Government Order on August 9, 2018 for selection and appointment in Junior Basic Schools.

On the same day, another Government Order was issued for conducting ATRE-2018. The Examination Regulatory Authority, UP was entrusted for conducting the same. Qualifying cut off marks for General/OBC candidates was 45 percent, while 40 percent was fixed for Scheduled Caste/Scheduled Tribe candidates.

On January 17, 2018, schedule for conducting ATRE-2018 was notified by the state government, pursuant to which, the Examination Regulatory Authority issued notification, inviting online application.

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On August 8, 2018, the state government directed the Examination Regulatory Authority to declare result, pursuant to which result of candidates was declared on August 13, 2018 and total 41,556 candidates were declared successful and qualified ATRE-2018 against vacancy of 68,500. The state government on August 18, 2018, issued another Government Order for filling up the vacancies.

On August 19, 2018, the Board came into action and invited online applications with district preference against 75 districts from total 41,556 successful candidates and vacancies were reduced from 68,500 to 41,556. The vacancies were notified separately available in 75 districts.

The reservation applicable as per the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 was applied in the first phase of counselling held on September 1, 2018 and September 2, 2018.

Some of the candidates of reserved categories, including other Backward Classes, Scheduled Caste and Scheduled Tribes, having obtained higher marks in the merit list, were placed in the General Category and were offered appointment in the Open General Category.

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Ashok Khare and R.K. Ojha, Senior Advocates, have emphatically argued that once the single selection process was initiated by the state government, the Board was not justified in reducing the number of vacant seats advertised from 68,500 to 41,556 and thereby, allotting district as per the preference of the candidates placed higher in merits on the available seat which has been reduced, while the candidates being lower in merit were given the district of their preference in second counselling.

The selection process cannot be divided into two parts extending benefit to the candidates, who are lower in merit getting first preference of their choice while candidates, higher in merit, being denied the benefit.

The Counsel further argued that when the Single Judge had arrived at a finding and extended the benefit to those reserved category candidates who were given allotment treating them as candidate in open General category, but by the judgment, direction had been given to the Board to redraw the list and place them as a reserved category candidate. No such denial can be made with the members of Open Category candidates having secured higher marks and placed at higher merit than those candidates, who were offered and given the place of posting of their choice in second counselling.

It was contended by Senior Counsel Ojha that the Board had arbitrarily varied the district-wise vacancies and reduced their numbers, which was notified in the Government Order and similarly, vacancies in certain districts such as Fatehpur, Chandauli, Sonbhadra, Siddharthnagar, Chitrakoot Dham, Balrampur, Bahraich and Shrawasti were increased disproportionately. The vacancies in these aspirational districts remained unfilled as most of the candidates of the second list have been allotted districts of their choice other than these districts.

Yatindra, Counsel appearing for the Board, submitted that the Board has also preferred appeal against the Single Judge verdict and submitted that no substantial disadvantage or loss would be caused to the candidates of MRC in case of non-allocation of district of their choice under reserved category and the judgment relied upon by the Single Judge was to the effect that allotment made in those cases were disadvantageous, but in the present scenario, all Assistant Teachers of Junior Basic School, run and managed by the Board, are under the same pay scales, thus it hardly makes any difference whether a candidate gets a particular district or not.

H.N. Singh and C.B. Yadav, Senior Advocates appearing for the interveners, submitted that a teacher is a district cadre post and under Rule 2(b), appointing authority is the District Basic Education Officer.

The procedure for selection under Rule 14 and Rule 14(1) (a) provides for determination of vacancies as per the 22nd Amendment of Rules, 1981. After the advertisement, an examination was conducted for vacancy of 68,500 teachers across the state and the state government having decided to conduct Centralized Assistant Teacher Recruitment Examination, prepared the merit at State level and then recommended the name to concerned appointing authority, the District Basic Education Officer of all 75 districts, keeping in view the merit and preference of the candidate and thereafter actual appointment has taken place by counselling conducted by the Appointing Authority, the District Basic Education Officer.

In the bunch of appeals before the Court, appellants are aggrieved by the benefit extended by the Single Judge to MRC vide judgment dated August 29, 2019, whereby the Board has to carry out an exercise for allotment of district to the MRC treating them to be reserved category candidates for the purpose of allotment of district of their preference.

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The grievance of the appellants, who are candidates belonging to open General Category are that once the Board was going to conduct fresh exercise for the allotment of district of MRC, treating them as reserved category candidates and allotting them district of their preference, the members of Open General Category are also entitled for the same treatment, as the selection for 68,500 Assistant Teachers was held pursuant to the advertisement dated January 9, 2018 and result having been declared on August 13, 2018 for 41,556 successful candidates, there was no justification on part of the Board to have conducted counselling in two parts, the Court said.

The Court observed that the Board proceeded on wrong assumption and reduced the number of originally notified vacancies from 68,500 to 41,556 before holding counselling. Once the counselling for the first round was held for 35,420 candidates as per available reduced seat of 41,556, no occasion arose for holding second counselling of 6,136 candidates from the remaining 26000 and odd seats, left unfilled from the total seat notified. Thus, extending benefit in the form of preference to the candidates of the second round of counselling was unjust.

The Court said that the argument of the Board cannot be justified at any cost as it was duty bound to show fairness and should have conducted counselling as per the available seats and district and not to have been allotted district to the candidates of the second counselling as per the availability being reflected. The argument of intervener counsel also cannot be accepted that UP Basic Education (Teachers) (Posting) Rules, 2008 will apply and once the candidate had been allotted the district, they had no right to claim their choice of posting.

The Court not only to has balance the equity with MRC, but also with the candidates having higher merit of Open General Category, as by denying them their due, injustice would be done with them, which will legalize the arbitrary action of the officers of the Board.

The Court gave a thoughtful consideration to the argument advanced from both the sides and looking at the facts that examination was conducted in 2018 and placement/posting being given in the said year and candidates having joined at their respective place of posting in 2018 itself, with the consensus arrived at between the counsels of both the sides as well as consent of the Board.

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The Court proposed to the following order :-

I.  The candidates already selected/posted and working in the respective district of any category, shall not be disturbed.

II. The judgment in favour of the Meritorious Reserved Caste Candidates is not interfered. The petitioners-appellants belonging to Reserved Caste category would submit an application before the Board for change of posting pursuant to the judgment of the Single Judge within a period of two months of this judgment. The Board would thereupon process the case and post them as per their choice within two months. This direction would not be applicable in general, but limited to the petitioners-appellants whose writ petitions were allowed by the Single Judge.

III. The appellants and Intervenors belonging to Open General category shall give option of three districts for their posting, which would be considered by the Board within two months. They would be posted in any of the districts of their choice, subject to availability of the vacancy in the district concerned.

With the aforesaid, the judgment of the Single Judge dated August 29, 2019 have been modified and the special appeals disposed of, the order read.

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