The Allahabad High Court on Tuesday said that when the Court has already held that the denial of selection on the basis of residence is unconstitutional, then the appointment cannot be denied on the ground of submission of residence certificate after the cut-off date.
A single-judge bench of Justice Pankaj Bhatia passed this order while hearing a petition filed by Neetu. The facts of the case are that the State Government issued a Government Order dated December 01, 2018 for conducting recruitment of Assistant Teacher and an advertisement was issued to the effect known as Assistant Teacher Recruitment Examination-2019.
The selection/recruitment and other conditions governing the Assistant Teachers in Basic Schools run by the Board of Basic Education are Governed by the Basic Education Act, 1972 and U.P Basic Education Service Rules, 1981 and U.P. Basic Education (Teachers) (Posting) Rules, 2008.
It is argued that the Act of 1972 and the Rules of 2008 do not provide for the requirement of domicile/residence for selection to the posts of Assistant Teacher. Paragraph 4 (4) of the Guidelines dated December 1, 2018 issued by the State Government for recruitment provided that eligibility for recruitment would be that the candidate should be Indian national and either domicile of UP or residing in UP for the last five years. No separate guidelines were provided for female candidates.
The Petitioner has the requisite qualification applied for recruitment under the General category and was declared qualified. After the declaration of the result, the State Government issued Government Orders dated May 13, 2020 and May 16, 2020 indicating the manner of filling of the vacancies, as advertised, and no separate criteria for production of domicile certificate was provided therein.
The Petitioner claims that the petitioner was initially a resident of Haryana and passed her Secondary School Examination from Faridabad and her graduation from Rohtak, Haryana as well as B.Ed from Haryana. Subsequently, the petitioner got married to Kuldeep Singh on December 5, 2012 and ever since her marriage, continued to stay at Ghaziabad, which is also indicated in her Marriage Certificate dated August 19, 2015.
The Petitioner after being declared to be selected in the written examination moved an application online on the website of the Basic Education Board and in the tentative select list, the name of the petitioner surfaced.
The Petitioner in terms of her selection, appeared before the Selection Committee on December 2, 2020 at District Amethi (her allotted district) along with her testimonials, however, she was not issued the appointment certificate solely on the ground that the domicile certificate of the petitioner was issued after the cut off date May 28, 2020.
Counsel for the petitioner argued that by way of abundant caution, the petitioner had applied for issuance of domicile certificate at her matrimonial address i.e Ghaziabad on May 16, 2020, the date on which the advertisement was issued by the State and it was assured by the service provider that domicile certificate would be granted within seven days, however, the domicile certificate was actually issued to the petitioner on June 3, 2020.
It is stated that the Government issued a clarification on December 4, 2020 wherein it was stated that only domicile certificate and caste certificate issued prior to May 28, 2020 are acceptable.
In view of the same, an order was passed on March 5, 2021 cancelling the appointment of all the persons, who had produced caste and domicile certificates issued subsequent to May 28, 2020.
Counsel for the Petitioner argued that for similar recruitment exercise carried out for earlier examination similar conditions with regards to requirement of mandatory domicile certificate was provided for.
“The said Guidelines were challenged before the Court in Writ Petition (A) No. 4714 of 2019 (Sumit and 14 others Vs. State of UP and 2 others) mainly on the ground that denying appointment solely on grounds of place of birth was contrary to the mandate of Article 16 (2) of the Constitution of India and also contrary to the requirements specified in the Recruitment Rules.
The said contention was accepted and the said petition was allowed by the Court judgment dated May 8, 2019 whereby considering the mandate of Article 16 (2) of Constitution of India, Clause 2 of the Guidelines dated August 19, 2018 was declared ultra vires the 1981 Rules and was held to be unconstitutional and in violation of Article 16(2)”,
-noted the Court.
He further argued that the State of UP while carrying out exercise for recruitment to the post of Junior Engineers and other technical staff provided for horizontal reservations only to persons domiciled in the State which was challenged before the Court.
The Court delivered a detailed judgment dated January 16, 2019, declaring the said provision contained in Government Order dated January 9, 2007 as ultra vires Article 16(2) and 16(3) of The Constitution of India.
The writ petition contends that once the Guidelines of providing the domicile certificate are held to be unconstitutional, a similar requirement of domicile in recruitment examination is also unconstitutional and ultra vires 1981 Rules.
“Once the condition specified in Point No. 3 (1) of the impugned Government Order dated December 4, 2020 and Paragraph 2(2) of the Government Order dated March 5, 2021 impugned herein are declared to be ultra vires the 1981 Rules and unconstitutional and in violation of Article 16(2), I have no hesitation in holding that denial of appointment letter to the petitioner solely on the ground that domicile certificate issued to the petitioner was subsequent to the cut off date, cannot be accepted,”
-the court observed while allowing the writ petition.
The Court directed the District Basic Education Officer, Bulandshahar to issue appointment letters to the petitioner in terms of her selection.
“The prayer of the petitioner for payment of her salary from the date her name surfaced in the select list is rejected on the ground of ‘no work no pay’. It is clarified that the appointment letter, as directed above, shall be issued to the petitioner within a period of two months from the date the petitioner approaches the respondent no. 4/ District Basic Education Officer Bulandshahar and the petitioner shall also be entitled to her salary and other benefits after her actual joining,” the order reads.