अनुकंपा नियुक्ति प्रोबेशन पर भी की जा सकती है।

इलाहाबाद। हाईकोर्ट के तीन जजों की पूर्णपीठ ने एक महत्वपूर्ण निर्णय देते हुए कहा है कि मृतक आश्रित कोटे के तहत दी जाने वाली अनुकंपा नियुक्ति प्रोबेशन पर भी की जा सकती है। आवश्यक नहीं है कि सीधे स्थायी नियुक्ति ही दी जाए। अनुकंपा नियुक्ति के मामले में यह विधि प्रश्न पीठ के समक्ष था कि मृतक क्या मृतक आश्रित को प्रोबेशन पर नियुक्त करना सही माना जाएगा। पूर्णपीठ ने माना कि इसमें कुछ भी गैरकानूनी नहीं है। प्रकरण पर मुख्य न्यायमूर्ति डा. डीवाई चंद्रचूड, न्यायमूर्ति एमके गुप्ता और न्यायमूर्ति यशवंत वर्मा की पीठ ने सुनवाई की।

पूर्णपीठ का कहना था कि प्रोबेशन पर किसी कर्मचारी को रखने का उद्देश्य नियुक्ति प्राधिकारी द्वारा कर्मचारी योग्यता और सेवा में बने रहने की क्षमता का परीक्षण करना होता है। यदि अनुकंपा के तहत नियुक्त किसी कर्मचारी को प्रोबेशन पर रखा जाता है तो इसमें कुछ भी गलत नहीं है। इससे पूर्व हाईकोर्ट की दो खंडपीठों ने अलग-अलग फैसले मेें मृतक आश्रित कोटे में नियुक्त कर्मचारियों को प्रोबेशन पर रखने को गलत माना था। इस मामले में बहस थी कि चूंकि अनुकंपा नियुक्त स्थायी प्रकृति की होती है इसलिए प्रोबेशन पर रखना अनुचित है। पूर्णपीठ ने कहा चूंकि कर्मचारी की नियुक्ति अनुकंपा पर होती है मगर सेवा मेें आने के बाद उसे दूसरे कर्मचारियों की ही तरह सभी सेवा शर्तों और जिम्मेदारियों को पूरा करना होता है। अनुकंपा पर नियुक्त कर्मचारी इस दायित्व से मुक्त नहीं हो सकता है। नियुक्ति प्राधिकारी को अधिकार है कि उसकी योग्यता की जांच करे। सेवा नियमावली में ऐसा उपबंध नहीं है कि अनुकंपा पर नियुक्त कर्मचारी प्रोबेशन के प्रावधान से मुक्त है।

HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR 

RESERVED 

Writ - A No 43622 of 2015 

*** 

Sr General Manager, Ordnance Factory, Kalpi Road, Kanpur 

Vs 

Central Administrative Tribunal & Anr 

Appearance: 

For the petitioner: 

Shri Ashok Mehta, Senior Advocate, ASGI 

Shri Satish Kumar Rai, Senior Panel Counsel, Central Govt 

Shri Saurabh Srivastava, Senior Panel Counsel, Central Govt 

Shri Manoj Kumar Singh, Central Government Counsel 

Shri Chandra Prakash Yadav, Central Government Counsel 

For the respondents: 

Shri Sanjeev Singh, Advocate 

Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice 

Hon'ble Manoj Kumar Gupta, J 

Hon'ble Yashwant Varma, J 

(Per Dr D Y Chandrachud, CJ) 

The reference 

By a referring order of a Division Bench dated 5 August 2015, the following questions of law have been referred for adjudication by the Full Bench1: 

1. Where a person is granted compassionate appointment as a member of the family of a deceased employee of the government who has died in harness in relaxation of the normal rules for recruitment, is it not necessary that even a compassionate appointee be placed on probation in the first instance, in the same manner as any other direct recruit, since the provision pertaining to appointment on probation has not been excluded or exempted in the case of a compassionate appointment; 

2. Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, whether there is any violation of law or principle in appointing a person in this category on probation in the first instance; 

3. In view of the clear distinction in service jurisprudence between a regular and a temporary appointee, whether the appointment of a person on a compassionate basis on probation is permissible in law. 

A writ petition under Article 226 of the Constitution has been instituted by the Senior General Manager of the Ordnance Factory at Kanpur against a judgment and order of the Central Administrative Tribunal2 dated 29 May 2015. An Original Application was filed before the Tribunal by the second respondent in order to challenge an order dated 25 January 2011 of the General Manager of the Ordnance Factory and an appellate order dated 21 March 2012. 

The services of the second respondent, who was offered compassionate appointment, were put to an end on the ground that his work and performance during the period of probation were not satisfactory. The Tribunal held that a person who is appointed on a compassionate basis cannot be appointed on probation, as the appointment has to be regular/permanent. In arriving at this conclusion, the Tribunal relied upon the following judgments of this Court: 

(1) Jagdish Narain Vs Union of India3; 

(2) Sanjai Kumar Vs Dy Director General (NCE) Directorate, U P4; and 

(3) Ram Chandra Vs State of U P5. 

In the view of the Tribunal, a disciplinary enquiry has to be held before terminating the services of a person appointed on a compassionate basis. The order of termination was set aside. 

When the writ petition was taken by the Division Bench, it was urged on behalf of the petitioner that the judgment in Jagdish Narain (supra) does not lay down the correct position in law, since it fails to notice that under the scheme pertaining to compassionate appointment which was notified on 9 October 1998 in a notification of the Union Government, a relaxation is granted to the appointee only in certain matters, these being: 

(1) The normal recruitment process; 

(2) The ban, if any, on direct recruitment; 

(3) Upper age limit; 

(4) Meeting other requirements, such as passing a typing test. 

Hence, it was urged that other provisions pertaining to direct recruitment would continue to apply and a compassionate appointee has necessarily to be placed on probation in the first instance. Such an appointee can be confirmed on the post only after completing the period of probation satisfactorily. All such appointments, including an appointment on probation, are regular appointments and when a person appointed on a compassionate basis is placed on probation, the appointment continues to be of a regular nature. The Division Bench, while referring the issue to the Full Bench, held that it was not in agreement with the law law laid down in Jagdish Narain (supra) which considered the provisions, inter alia, of the Government Order dated 9 October 1998. In the view of the Division Bench, a person who is appointed on a compassionate basis, would necessarily have to be placed on probation in the first instance, in accordance with the service rules. The consequence is that if he or she does not complete the period of probation successfully, the services would be liable to be terminated, like in the case of any other direct recruit. The Division Bench observed that while provisions pertaining to temporary appointments in service rules may not be applicable to a compassionate appointee, this does not give rise to an inference that a person who is appointed on a compassionate basis, is not to be appointed on probation. 

This is the background in which the reference before the present Full Bench arises. 

Compassionate appointment 

Compassionate appointment is a concept which has been evolved in our service jurisprudence to meet situations where an employee of the State dies while in service. Compassionate appointment as a concept, recognizes that the family of an employee of the State, who has died while in service, is left to fend for itself without its wage earner on whom it was dependent. While the sorrow of an untimely death cannot be assuaged - time and memory being a healer of sorts - what compassionate appointment provides is an avenue for the family of the deceased employee to live with a sense of dignity by providing one of its members employment with the State. 

Compassionate appointment is an exception to the principle that equality of opportunity in matters of public employment, which is guaranteed by Article 16 of the Constitution, requires a level playing field for all prospective applicants who seek employment with the State. Appointing a person in the employment of the State merely on the ground of the relationship with a government servant will violate Articles 14 and 16, since it would deprive society at large of an equal right to apply for and seek selection on the post. Compassionate appointment is accepted as a valid exception to the general rule, for the reason that its rational is founded on the principle that there is a public interest inherent in protecting the dependents of employees of the State from the financial destitution which may result from an untimely death while in service. The exception is thus not founded only on the existence of a family relationship. Besides this, it is founded on dependency and financial need caused by the death of a wage earner while in service. As an exception, its contours and ambit are precisely defined or tailored to bring about a proportionality between the reason for the exception and the means which are used to meet its purposes. Firstly, the death of the employee of the State should have occurred while in service or as it is commonly said, while in harness. Secondly, the financial needs of the family of the deceased employee should justify the grant of employment in the State on a preferential basis. Absent financial need, no compassionate appointment can be granted. Thirdly, compassionate appointment is not a reservation of a post in public employment but an enabling facility which is provided to meet a situation of financial want and need. Fourthly, the grant of appointment must ordinarily be proximate in time to the occurrence of the eventuality of death since the need of a family which has survived a death over a period of time would, in all reasonable possibility, stand diluted with the progression of time. Fifthly, the ambit of who can seek compassionate appointment is specified so as to allow access to the provision to persons belonging to the immediate family of the deceased who are dependent on him or her. Sixthly, there is no general right to seek compassionate appointment in the service of the State. A claim for compassionate appointment can be made where a policy has been laid down by the State to provide compassionate appointment under a dying in harness provision. Absent an enabling policy, there would be no right or claim to compassionate appointment. Where there is a policy, the claim has to be evaluated strictly according to its terms. Seventhly, the State while framing a policy for compassionate appointment, can legitimately define the governing terms and conditions on which compassionate appointment can be granted, including the post or posts to which the appointment is to be made. A person who is appointed on a compassionate basis does not, in that sense, step into the shoes of the deceased government servant, since he or she is a fresh appointee on direct recruitment to whom employment is granted on a post or position for which compassionate appointment is available. The State can also prescribe the extent, proportion or number of posts to which and the identity of posts against which compassionate appointment is to be evaluated. 

These only are some of the principles, and are not intended to be an exhaustive catalogue of considerations. 

The Scheme of the Union Government 

The Division Bench in its referring judgment, referred to a notification of the Union Government dated 9 October 1998 which provided that compassionate appointment enables a relaxation or exemption in respect of some matters to be provided while making appointment. These are (i) the procedure of the normal recruitment process; (ii) non-applicability of the ban, if any, in a direct recruitment; (iii) relaxation in the outer limit of age for making an appointment; and (iv) relaxation on other aspects including a typing test. 

The Office Memorandum of 9 October 1998 issued by the Government of India in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) formulated the governing norms of a Scheme for compassionate appointment under the Central Government. A number of instructions on compassionate appointment under the Central Government were issued. These were brought together and formulated in an Office Memorandum dated 16 January 2013. The Scheme is an illustration of and embodies many of the principles to which we have adverted to above. 

Para 1 of the Scheme for compassionate appointment provides the object of compassionate appointment in the following terms: 

"1. OBJECT 

The object of the Scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency." 

Para 2 provides for applicability. Where the person on account of whose death compassionate appointment is provided was a government servant, the following norm of eligibility is laid down: 

"To a dependent family member - 

(A) of a Government servant who - 

(a) dies while in service (including death by suicide); or 

(b) is retired on medical grounds under Rule 2 of the CCS (Medical Examination) Rules 1957 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for erstwhile Group ''D' Government servants); or 

(c) is retired on medical grounds under Rule 38 of the CCS(Pension) Rules, 1972 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for erstwhile Group ''D' Government servants);" 

Note I defines the expression "dependent family member" as follows: 

"Note I "Dependent Family Member" means: 

(a) spouse; or 

(b) son (including adopted son); or 

(c) daughter (including adopted daughter); or 

(d) brother or sister in the case of unmarried Government servant or (e) member of the Armed Forces referred to in (A) or (B) of this para, 

-who was wholly dependent on the Government servant/ member of the Armed Forces at the time of his death in harness or retirement on medical grounds, as the case may be." 

Under Para 4, posts to which such appointments can be made are Group 'C' posts against the direct recruitment quota. Para 5 which provides for eligibility is in the following terms: 

"5. ELIGIBILITY 

(a) The family is indigent and deserves immediate assistance for relief from financial destitution; and 

(b) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules." 

Para 6 of the Scheme provides for exemptions and relaxation in the following terms: 

"6. A. EXEMPTIONS 

Compassionate appointments are exempted from observance of the following requirements:- 

(a) Recruitment procedure i.e. without the agency of the Staff Selection Commission or the Employment Exchange. 

(b) Clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training. 

(c) The ban orders on filling up of posts issued by the Ministry of Finance (Department of Expenditure). 

B. RELAXATIONS 

(a) Upper age limit could be relaxed wherever found to be necessary. The lower age limit should, however, in no case be relaxed below 18 years of age. 

Note I Age eligibility shall be determined with reference to the date of application and not the date of appointment; 

Note II Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of upper age limit also for making such appointment. 

(b) In exceptional circumstances Government may consider recruiting persons not immediately meeting the minimum educational standards. Government may engage them as trainees who will be given the regular pay bands and grade pay only on acquiring the minimum qualification prescribed under the recruitment rules. The emoluments of these trainees, during the period of their training and before they are absorbed in the Government as employees, will be governed by the minimum of the - 1S pay band Rs.4440-7440 without any grade pay. In addition, they will be granted all applicable Allowance, like Dearness Allowances, House Rent Allowance and Transport Allowance at the admissible rates. The same shall be calculated on the minimum- IS pay band without any grade pay. The period spent in the-1S pay band by the future recruits will not be counted as service for any purpose as their regular service will start only after they are placed in the pay band PB-1 of Rs.5200-20200 along with grade pay of Rs.1800. (Para 1 of O.M. No.14014/2/2009-Estt.(D) Dated the 11th December, 2009) 

Note In the case of an attached/subordinate office, the Secretary in the concerned administrative Ministry/Department shall be the competent authority for this purpose. 

(c) In the matter of exemption from the requirement of passing the typing test those appointed on compassionate grounds to the post of Lower Division Clerk will be governed by the general orders issued in this regard:- 

(i) by the CS Division of the Department of Personnel and Training if the post is included in the Central Secretariat Clerical Service; or 

(ii) by the Establishment Division of the Department of Personnel and Training if the post is not included in the Central Secretariat Clerical Service. 

(d) In case of appointment of a widow not fulfilling the requirement of educational qualification, against the post of MULTI TASKING STAFF, she will be placed in Group 'C'- Pay Band - 1 (Rs. 5200-20200)+ Grade Pay Rs. 1800/- directly without insisting on fulfillment of educational qualification norms, provided the appointing authority is satisfied that the duties of the post against which she is being appointed can be performed with help of some on job training. This dispensation is to be allowed for appointment on compassionate ground against the post of MULTI TASKING STAFF only." 

Para 7 envisages that appointment on compassionate grounds should be made only on a regular basis and only if regular vacancies meant for that purpose are available. Compassionate appointments are to be made upto a maximum of 5% of the vacancies falling under direct recruitment quota in any Group ''C' posts. The appointing authority is empowered to hold back 5% of the vacancies in the aforesaid categories to be filled by direct recruitment through the Staff Selection Commission or otherwise so as to fill vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds has to be adjusted in the recruitment roster against the appropriate category - SC/ST/OBC/General - depending upon the category to which he or she belongs. Para 7 (c) provides as follows: 

"(c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ad-hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments." 

Para 8 contemplates that an application for compassionate appointment is to be considered without any time limit and a decision has to be taken on merits in each case. Para 11 refers to the financial aspects which are to be placed in evaluation and is as follows: 

"11. WHERE THERE IS AN EARNING MEMBER 

(a) In deserving cases even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government servant, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family. 

(b) In cases where any member of the family of the deceased or medically retired Government servant is already in employment and is not supporting the other members of the family of the Government servant, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Government servant so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that the member of the family already employed is not supporting the family." 

Under Para 14, a person who is appointed on compassionate grounds has to furnish an undertaking to maintain the other members of the family who were dependent on the deceased government servant, properly. In the event that it is established subsequently, at any time, that the members of the family are being neglected and are not being maintained properly, the appointment may be terminated forthwith. Under Para 17, the services of a compassionate appointee can be terminated upon the issuance of a notice to show cause for non-compliance of the conditions contained in the letter of appointment. Para 17 is in the following terms: 

"17 TERMINATION OF SERVICE 

The compassionate appointments can be terminated on the ground of noncompliance of any condition stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him/her to explain why his/her services should not be terminated for non-compliance of the condition(s) in the offer of appointment and it is not necessary to follow the procedure prescribed in the Disciplinary Rules/Temporary Service Rules for his purpose." 

The Department of Personnel and Training in its Establishment 'D' Division, has prepared a tabulated statement of Frequently Asked Questions (FAQs) on compassionate appointment. Among them, in item 44, is the following: 

44 

Question 

Whether a person appointed on compassionate grounds as 'Trainee' will have probation period. 

Answer 

Yes. The probation period, as specified in Recruitment rules of the post/grade against which he/she is appointed would commence from the date he/she acquires minimum educational qualification. 

Now, in this background, the basic issue which is to be addressed in these proceedings needs to be considered. 

Probation 

Where a person is recruited as a direct recruit in the service of the State, the appointment is made on a probationary basis so as to enable the appointing authority to assess the conduct, work and character of the probationer during the period of probation. During the period of probation, the services of a probationer are assessed to determine the suitability of the probationer for retention in service. A direct recruit in the employment of the State is appointed to the regular service. An appointment on probation does not detract from the nature of the appointment which is to a regular service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. There is a well accepted distinction in law and in service jurisprudence between a probationary appointment and a temporary appointment. Temporary appointments in the central civil services are governed by the Central Civil Services (Temporary Services) Rules 1965. The services of a temporary government servant are liable to termination at any time by a notice in writing furnished either by the government servant to the appointing authority or by the appointing authority to the government servant. The object and purpose of a probationary appointment is to enable the employer to observe the performance of the employee during the period of probation and to test the capacity, conduct and character of the employee as a basis to determine suitability for retention in service. 

The judgments on which the reference is made 

In a judgment of a Division Bench of this Court Ravi Karan Singh Vs State of U P6, the issue which was considered, was whether an appointment made under the Uttar Pradesh Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 19747 is a permanent or a temporary appointment. A Single Judge, disagreeing with earlier decisions which had held that an appointment under the Dying in Harness Rules is a permanent appointment, had referred the issue to a larger Bench. Answering the reference, the Division Bench held as follows: 

"In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread-earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments." 

In Sanjai Kumar Vs Dy Director General (NCE) Directorate (supra), the services of a person, who was appointed on compassionate grounds, were terminated under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 treating it to be a temporary appointment. A learned Single Judge set aside the appointment. The Division Bench observed that neither was a notice served nor was an opportunity furnished to the employee to explain his misconduct. The Division Bench held that on the allegation against the petitioner which was noted in the judgment of the Single Judge, it was open to the State to have held an enquiry. The Division Bench followed the earlier decision in Ravi Karan Singh in coming to the conclusion that an appointment under the Dying in Harness Rules has to be treated as a permanent appointment and hence a termination on the basis that it was of a temporary nature would be illegal. 

In Ram Chandra Vs State of U P (supra), the father of the petitioner was working as a Class-IV employee in the Rajkiya Vastukala Mahavidyalaya and died while in service. The petitioner was appointed on a compassionate basis under the Dying in Harness Rules. His services were terminated. The State Public Services Tribunal dismissed the claim petition. The State sought to sustain the termination by submitting that the appointment had been made on a temporary basis and the work and conduct of the petitioner were not satisfactory. The Division Bench held that: 

"... It is settled law that the appointments made under the provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 are of permanent nature. Since appointment of the petitioner was of permanent nature, the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975 were not applicable..." 

In Jagdish Narain (supra), a permanent employee of the Union of India having died in harness, his son was appointed on probation subject to the condition that if his services were found to be unsatisfactory during the period of probation, they were liable to be dispensed with. On finding that the work of the petitioner was unsatisfactory, his services were terminated. The ground of challenge before the Tribunal was that since the termination was for absence from duty, it ought to have been preceded by an enquiry into misconduct. The Tribunal dismissed the Original Application upon which a writ petition was filed before this Court. The Division Bench referred to an Office Memorandum dated 30 June 1987 of the Union Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) which held the field at the material time. Para 7 (a) contemplated that appointments on compassionate grounds should be made only on a regular basis and that too, only if regular vacancies meant for that purpose are available. The Division Bench held that an appointment on probation is made under the relevant service rules governing recruitment and conditions of service. On the other hand, an appointment on compassionate grounds is not made under the service rules but is "a special kind of legislation unknown to the general procedure of recruitment" in the service rules. The Division Bench made that distinction in the following observations: 

"It appears that the nature of the petitioner's appointment on probation is an outcome of the appointment made under the relevant service rules, meant for general selection containing recruitment and conditions of service, where the person after adopting the procedure of selection is appointed on probation basis. The appointment on probation basis is the quite known feature of service rules meant for the purposes of selection and appointments on various posts. In some rules there are provisions that after expiry of the fixed term of probation if nothing adverse is communicated, the service of such employees shall be deemed to be confirmed. There are also conditions in the relevant service rules that the probation period can be extended and in case the work of the employee appointed on probation basis is not satisfactory, his services can be terminated also. 

It is also quite well known feature and settled principle that the appointment on compassionate ground is not made under the relevant service rules governing the general selection, including recruitment and conditions of service. This is a special kind of legislation unknown to the general procedure of recruitment contained in various service rules. Here, the intention of the legislature is, to save out the family from financial crunch which falls upon the family after the death of the employee who dies in harness." 

The Division Bench held that the Office Memorandum of 1987 contemplated that appointments on a compassionate basis were permanent in nature and there was no reference in it to the appointment being on probation. In the view of the Division Bench, "the sword of uncertainty" could not be allowed to hang on the head of an employee appointed on compassionate grounds, otherwise he would not be able to discharge his duties with full devotion. The view of the Division Bench was that in the scheme governing appointments on compassionate grounds, there was no provision for appointment on probation and hence the issuance of a letter of appointment on probation to a compassionate appointee was arbitrary and unsustainable. The Division Bench held as follows: 

"As would reveal from the foregoing discussions and the Circular relied upon by the respondents, meant for appointment on compassionate grounds, there is no provision for appointment on probation/temporary basis and in absence of any such provision under the relevant circular/rule under which petitioner's appointment was made, the respondents' stand cannot be justified in putting the condition of appointment on probation basis. It is settled law that if a statute provides to do a thing in a particular manner then that thing has to be performed in that very manner and in not doing so it leads towards futility having no avail and void. Therefore, we are of the considered opinion that in absence of any such provision under the relevant Circular governing the appointment on compassionate grounds, for making appointment on probation basis, the respondent's putting a rider on probation basis in appointment letter is totally misplaced, arbitrary and unsustainable in the eye of law." 

In the view of the Division Bench, once the appointment was permanent in nature, the placement of a condition of probation was unjustified. Reinstatement was ordered with half the back wages. 

Now, at the outset, it would be necessary to make a distinction between the decisions which were delivered in Ravi Karan Singh, Sanjai Kumar and Ram Chandra on the one hand, and the last judgment of the Division Bench in Jagdish Narain on the other. 

The decision in Ravi Karan Singh holds that the appointment of a person who is appointed under the Dying in Harness Rules cannot be terminated under the rules applicable to temporary government servants. The rationale for this position in law is that if the appointment is treated to be temporary, this will nullify the purpose of compassionate appointment which is to provide succour and relief to the family of the bread earner who has died while in service. This principle that the services of a person who is appointed on compassionate grounds, cannot be dispensed with by applying the rules prescribed for temporary government servants, was applied in Sanjai Kumar and later in Ram Chandra. Neither of these decisions deals with whether an appointment on a compassionate basis can be made in the first place on probation. That was not in issue before the three Division Benches and the issue has not been considered as a result. However, the decision in Jagdish Narain cites the earlier decisions in Ravi Karan Singh, Sanjai Kumar and Ram Chandra in support of the proposition that a compassionate appointment cannot be made on probation. Neither of the three earlier decisions of the Division Benches justify the finding or inference that a compassionate appointment cannot be made on probation since, as a matter of fact, that was neither the issue nor the principle of law enunciated by the Division Benches. 

With respect, we are unable to agree with the principle of law which has been laid down by the Division Bench in Jagdish Narain. An appointment which is made on a compassionate basis has to be made on a regular basis. Both Paras 7(a) of the Office Memorandum dated 9 October 1998 issued by the Union Government in the Department of Personnel and Training of the Ministry of Personnel, Public Grievances and Pensions and Para 7(a) of the more recent Office Memorandum dated 16 January 2013 provide that appointments on compassionate grounds should be made only on a regular basis and "that too", only if regular vacancies meant for that purpose are available. Making an appointment on a regular basis is not incompatible with the placement of the person appointed on probation. Appointment on probation is nonetheless an appointment to regular service and does not detract from the nature of the appointment. Probationary appointment does not leave the employee with a sword of uncertainty (as the Division Bench held in Jagdish Narain) hanging over his or her head. The period of probation is a period during which the appointing authority is entitled to assess the suitability of the employee for being retained in service. The retention or dispensation of the services of a probationer does not lie at the whim and fancy of the appointing authority, and is governed by the settled principles of service jurisprudence of making a bona fide assessment of the suitability for retention of the employee, based on his or her performance and work during the period of probation. An employee who is appointed on a compassionate basis is not immune from the operation of the general rules of service. What the scheme for compassionate appointment does is to provide certain exemptions and relaxations which are specifically codified (in Para 6 of the earlier O M dated 9 October 1998 and the O M dated 16 January 2013). Those exemptions and relaxations are that - firstly, the ordinary procedure for recruitment through the agency of the Employment Exchange or the Staff Selection Commission need not be observed; secondly, clearance from the surplus cell is not required; and thirdly, the ban order, if any, on filling up of posts issued by the Union Ministry of Finance in the Department of Expenditure are not applied. Para 6 also contemplates a relaxation in the upper age limit, in the fulfillment of the minimum educational standards and the passing of a typing test. The exemptions and relaxations must be confined to those which are prescribed by the policy and cannot be extended by the Court beyond what has been prescribed. Determining the nature and extent of exemptions and relaxations is a matter of executive policy. The Court in the exercise of its jurisdiction under Article 226 cannot re-write or re-frame policies, judicial review being confined to whether there is a constitutional violation. The Division Bench in Jagdish Narain has erred in holding that the Office Memorandum does not contemplate an appointment being made on probation and in concluding that an appointment on compassionate basis being "a special kind of legislation unknown to the general procedure of recruitment" in the service rules, a compassionate appointee cannot be placed on probation. A person who is appointed on a compassionate basis obtains employment without having to go through the ordinary procedure of recruitment and where a relaxation is required, by relaxing norms such as the upper age limit, minimum educational requirements and typing test. Again, here it is necessary to emphasise that these relaxations are granted because they are envisaged in the policy. But once appointed, a person who is recruited as a direct recruit on a compassionate basis is appointed 'on a regular basis' and against regular vacancies available for that purpose. A person appointed on a compassionate basis has to fulfill all the other obligations and responsibilities of the service. Such an appointee cannot claim immunity from an assessment by the employer of the suitability for retention in service. Such suitability is determined during the period of probation. The policy which has been framed, does not provide that a person who is recruited on compassionate basis, would not be placed on probation nor does it grant an exemption from the normal rules of appointment on probation. With respect, the Division Bench in Jagdish Narain erred in placing the test exactly in reverse, to the effect that there is nothing in the policy which requires appointment on probation. Once the policy clearly specifies that appointment would be made on a regular basis and against a regular vacancy, the appointment would have to be made in a manner consistent with the service rules. We, therefore, hold that there is nothing intrinsically wrong or contrary to law in a person who is appointed to a post on a compassionate basis being placed on probation. We, therefore, overrule the judgment of the Division Bench in Jagdish Narain (supra). We hold that the earlier decisions of the Division Benches in Ravi Karan Singh, Sanjai Kuamr, and Ram Chandra did not deal with the issue which has fallen for determination. 

We, accordingly, answer the questions which have been referred to the Full Bench in the following terms: 

(1) Re Question (1): Where a person is appointed on a compassionate basis as a dependent member of the family of an employee of the State who has died in harness, such an appointment can be made on probation. The object and purpose of appointing a person on probation is to determine the suitability of the person for retention in service. Appointment of a person who is engaged on a compassionate basis on probation is not contrary to law or unlawful. 

(2) Re Question (2): Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, such an appointee can be placed on probation in the first instance. 

(3) Re Question (3): The appointment of a person on a compassionate basis on probation is permissible in law. 

The reference is accordingly answered. The petition shall now be placed before the appropriate Bench according to roster for disposal in light of this judgment. 

February 12, 2016 

AHA 

शिक्षा मित्रों को वेटेज देकर नियुक्ति देने के खिलाफ याचिका

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. - 7 

Case :- WRIT - C No. - 59942 of 2015 

Petitioner :- Sarita Shukla 

Respondent :- State Of U.P. And 3 Others 

Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh 

Counsel for Respondent :- C.S.C.,U.S. Upadhyay 

Hon'ble Pradeep Kumar Singh Baghel,J. 

Learned counsel for the petitioner is permitted to implead the District Basic Education Officer, Allahabad as one of the respondents in the writ petition and serve notice on his counsel. 

It is contended on behalf of the petitioner that the provision to provide weightage to Shiksha Mitra as provided in the Government Order dated 15th June, 2007 is illegal. It is further submitted that a Full Bench of this Court in the case of Anand Kumar Yadav and others v. Union of India and others, Writ-A No. 34833 of 2014, decided on 12th September, 2015, and other connected matters, has already held that the appointment/ absorption of Shiksha Mitra is illegal. 

The matter needs consideration. 

Learned Standing Counsel has accepted notices on behalf of the respondent nos. 1 and 2. Sri U.S. Upadhyay, learned Advocate, has put in appearance on behalf of respondent nos. 3 and 4.

Counter affidavit be filed by all the respondents within six weeks. Rejoinder affidavit, if any, may be filed within a week thereafter. 

List the case after expiry of the said period. 

It is provided that appointment, if any, of the Shiksha Mitra in pursuance of the said Government Order dated 15th June, 2007 shall be subject to the result of the writ petition. 

Order Date :- 29.10.2015 

SKT/- 

पहली सुनवाई का आदेश 

Chief Justice's Court 

Case :- WRIT - C No. - 59942 of 2015 

Petitioner :- Sarita Shukla 

Respondent :- State Of U.P. And 3 Others 

Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh 

Counsel for Respondent :- C.S.C.,U.S. Upadhyay 

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice 

Hon'ble Yashwant Varma,J. 

Since the petitioner has only challenged the vires of the Government Order dated 15 June 2007, the Registry shall list the petition as fresh before the appropriate Bench according to roster. 

Order Date :- 26.10.2015 

VMA 

(Dr. D.Y. Chandrachud, C.J.) 

(Yashwant Varma, J.) 

बुधवार को परिषदीय विद्यालयों में दूध पिलाने पर जन हित याचिका दाखिल

मध्यान्ह भोजन योजना में संसोधन हेतु प्रस्तुत समिति की रिपोर्ट कैबिनेट की मंजूरी हेतु प्रेषित

Chief Justice's Court

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 42010 of 2015

Petitioner :- Vinay Kumar Ojha 

Respondent :- State Of U.P. And 9 Others 

Counsel for Petitioner :- Rakesh Pande 

Counsel for Respondent :- C.S.C.,Arjun Prasad Yadav,Sunil Kumar Singh,Ved Kant Mishra

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Yashwant Varma,J. 

The learned Standing Counsel has stated on the basis of the instructions received by him on 18 November 2015 that the report of the Committee has been received by the Government and the matter is now pending for approval before the Cabinet for making certain amendments in the Mid Day Meal Scheme. 

On the request of the learned Standing Counsel, we now stand over the proceedings to 3 December 2015 under the same caption. 

Order Date :- 19.11.2015

VMA

(Dr. D.Y. Chandrachud, C.J.)

(Yashwant Varma, J.) 

विशेषज्ञ समिति का गठन 

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 42010 of 2015 

Petitioner :- Vinay Kumar Ojha 

Respondent :- State Of U.P. And 9 Others 

Counsel for Petitioner :- Rakesh Pande 

Counsel for Respondent :- C.S.C.,Arjun Prasad Yadav,Sunil Kumar Singh

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Yashwant Varma,J.

On 1 October 2015, the Principal Secretary (Basic Education) has constituted an Expert Committee following the previous orders of this Court dated 8 September 2015 and 22 September 2015. The terms of reference of the Committee are set out in the following extract of the office memorandum dated 1 October 2015: 

"tufgr ;kfpdk la0&42010@2015 fou; dqekj vks>k cuke m0iz0 jkT; o vU; esa ikfjr ek0 mPp U;k;ky; ds vkns'k fnukad 22-09-2015 ds leknj esa nw/k dh miyC/krk] 'kq}rk] forj.k dh O;oLFkk ,oa nw/k miyC/k djk;s tkus vkfn egRoiw.kZ ,oa rduhdh fcUnqvksa ij ijh{k.k dj fjiksVZ miyC/k djk;s tkus gsrq fuEukuqlkj lfefr xfBr dh tkrh gSA"

While we are inclined to allow time to the State Government to reconsider the matter, now that an expert committee has been constituted, we may clarify that the orders of this Court previously passed in these proceedings are not only confined to availability of milk, purity and distribution as part of the mid-day-meal scheme. The basic issue which has also been raised in the orders of this Court is how the scheme can be implemented on the basis of conversion cost of Rs.3.76 and Rs.5.64 per child for primary and upper primary students. We direct that the expert committee which has been constituted shall look into all aspects of the matter and a report of the committee as well as a decision of the State Government thereon shall be placed before the Court.

The petition shall now be listed under the same caption on 30 October 2015.

Order Date :- 6.10.2015

RKK/-

(Yashwant Varma, J)

 (Dr D Y Chandrachud, CJ) 

दूध की उपलब्धता, उसका मुल्य एवं कन्वर्जन कास्ट के सम्बन्ध में कोर्ट का नजरिया

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 42010 of 2015 

Petitioner :- Vinay Kumar Ojha 

Respondent :- State Of U.P. And 9 Others 

Counsel for Petitioner :- Rakesh Pande 

Counsel for Respondent :- C.S.C.,Arjun Prasad Yadav,Sunil Kumar Singh 

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice 

Hon'ble Yashwant Varma,J. 

In pursuance of the previous order of this Court dated 8 September 2015, the Joint Secretary (Basic Education) is present before the Court and has submitted a chart. The chart indicates that the daily availability of milk at Kanpur Nagar is about 2,18,000 liters and the actual requirement of milk is about 23,237 liters having due regard to the fact that the average attendance of students for July and August 2015 was 53.31 percent of the total of 2,17,962 students enrolled. Of the five dairies which have been mentioned in a tabulated form, only one is in the control of the State, namely Parag Dairy which is listed at serial number 5. Whether the other dairies have entered into an agreement with the State Government to supply milk at the rate of Rs 32/- per litre is a matter on which the Court must be apprised. 

The second aspect which the Court had earlier adverted to is in respect of conversion charges and is of utmost importance. The conversion cost of Rs 3.76 and Rs 5.64 per child for the primary and upper primary students has been fixed by the State Government under the midday meal scheme. Under the revised menu, it has been contemplated that students have to be supplied a cooked meal and 200 milliliters of boiled milk on every Wednesday. Though an effort has been made to indicate that this is in lieu of the erstwhile menu which required the provision of a cooked meal or kheer on Wednesdays and Saturdays, the fact remains that under the revised menu, on Wednesdays a cooked meal is to be provided in addition to milk. How this can be achieved in the budgeted amount from the conversion cost is anybody's guess. Since the new District Magistrate has recently taken charge at Kanpur, we give sufficient time to enable him to apprise himself of all the relevant factual material and to file his personal affidavit in pursuance of the previous directions of this Court dated 8 September 2015. 

We direct both the Joint Secretary (Basic Education) and the Collector and District Magistrate, Kanpur Nagar to remain present in the Court on the next date of listing to assist the Court. 

We also issue notice to the sixth to tenth respondents. These respondents shall indicate before the Court the manner in which the conversion cost is utilized in the actual provision of food under the midday meal scheme. 

The learned counsel for the petitioner shall take steps to ensure that service is completed on the sixth to tenth respondents well in advance before the next date of listing. 

List on 6 October 2015 under the same caption. 

In the meantime, we are of the view that the facts which have been placed before the Court should warrant a fresh scrutiny by the State Government on the efficacy of the arrangements which it has made. 

Order Date :- 22.9.2015 

AHA 

(Dr D Y Chandrachud, CJ) 

(Yashwant Varma, J)

संयुक्त सचिव बेसिक द्वारा दूध पिलाने पर शपथ पत्र दाखिल

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 42010 of 2015 

Petitioner :- Vinay Kumar Ojha 

Respondent :- State Of U.P. And 9 Others 

Counsel for Petitioner :- Rakesh Pande 

Counsel for Respondent :- C.S.C.,Arjun Prasad Yadav,Sunil Kumar Singh 

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice 

Hon'ble Yashwant Varma,J. 

The affidavit which has been filed by the Joint Secretary (Basic Education) leaves many more questions unanswered that it seeks to explain. 

The affidavit states that with effect from 1 July 2015, an amount of Rs.3.76 per child at the primary level and Rs.5.64 per child at the upper primary level has been fixed by the State Government under the Mid Day Meal Scheme. The affidavit states that in the district of Kanpur Nagar there are 1674 primary schools and 822 upper primary schools aided by the State in which the Mid Day Meal Scheme is being implemented. There are 1,42,243 students at the primary level and 75,719 students at the upper primary level making a total of 2,17,962 students. The amended menu which has been put into place, envisages the distribution of 200 milliliters of boiled milk to every child on Wednesdays. 

The first issue which has to be answered by the State is whether satisfactory arrangements have been made for the procurement and distribution of forty thousand litres of milk which would be required on Wednesdays alone. The affidavit is totally silent on this aspect. The second aspect, as noted by this Court in its order dated 30 July 2015, was that even at the rate of Rs.32 per litre, 200 milliliters of milk would envisage a budgetary outlay of rupees eight per child on Wednesdays alone. How this expenditure is to be borne from the conversion cost of Rs.3.76 and Rs.5.64 per child for the primary and upper primary students respectively finds no explanation. What we find from the affidavit which has been filed by the Joint Secretary is a set of hypothetical computations which appear to have no connection with ground reality. 

In this view of the matter, we have no option but to direct the Joint Secretary (Basic Education) to reapply his mind with a greater sense of responsibility to the issues which are raised in the petition and to appear before this Court on the next date of listing with a full set of proper facts for appraisal before the Court. 

In the meantime, we also direct the Collector and District Magistrate, Kanpur Nagar to file a counter affidavit specifically dealing with both the aspects which are noted above and to explain to the Court, whether and if so the manner in which the Scheme is being implemented having regard to the issues noted above. The petition shall now be listed before this Court as fresh on 22 September 2015. 

Order Date :- 8.9.2015 

VMA 

(Dr. D.Y. Chandrachud, C.J.) 

(Yashwant Varma, J.) 

सरकारी सेवा में कार्यरत पति पत्नी दोनों को आवासीय भत्ता पाने का हक़ । सरकार के नीतिगत मामलों में कोर्ट का हस्तक्षेप करने से इन्कार ।

Chief Justice's Court AFR

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 29913 of 2015

Petitioner :- Bhim Singh Sagar

Respondent :- State Of U.P. & 5 Others

Counsel for Petitioner :- Sujeet Kumar,Chhaya Gupta

Counsel for Respondent :- C.S.C.,R.B. Yadav

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Yashwant Varma,J.

Invoking the jurisdiction in a PIL, the petitioner has challenged the legality of a Government Order dated 11 February 2015 regulating the payment of house rent allowance where both the spouses are employees of the State and are residing together in one accommodation either owned or rented. Prior to the issuance of the Government Order, there were earlier Government Orders dated 15 December 1981, 28 February 1984 and 28 April 2000 which stipulated that where both the spouses are employees of the State and reside together in one accommodation, house rent allowance would be allowable to one of the spouses. This regime has now been altered by the Government Order dated 11 February 2015 which stipulates that though both the spouses may be residing together in the same accommodation, each of them would be entitled to the payment of house rent allowance as allowable to them under their respective entitlements in service. This was sought to be challenged by the petitioner on the ground that it imposes a heavy burden on the State exchequer.

The second prayer by the petitioner in these proceedings is for a direction to the State to effect recoveries from its employees for the period prior to 11 February 2015 where the house rent allowance was claimed by both the spouses who are employees of the State and reside in the same accommodation. 

In response to the petition, a counter affidavit has been filed by the Principal Secretary, Finance to explain the genesis of the Government Order dated 11 February 2015. Employees of the Union Government who are engaged in an All India Service are governed by the All India Services (House Rent Allowance) Rules, 1977. On 8 November 1988, the Union Government in the Ministry of Finance issued an office memorandum clarifying the position in regard to whether house rent allowance would be allowable where both the spouses are in an All India Service under the Union Government and reside in the same accommodation. A policy decision was taken by the Union Government that no restriction should be imposed on the claim of the normal house rent allowance by each of the spouses who happens to be a member of an All India Service merely because they reside together in the same accommodation. The memorandum, insofar as is material is extracted hereinbelow:

"Subject:- Drawal of House Rent Allowance by husband and wife when both of them happen to be Govt. servants and are living in hired/owned accommodation- Clarification regarding.

The undersigned is directed to say that pursuant to revision of rates of HRA on the basis of recommendations of the 4th Pay Commission clarifications were being sought from this Ministry by Ministry of Railways etc. regarding admissibility of house rent allowance to husband and wife when both of them happen to be Govt. servants. After having the matter considered in consultation with Staff Side of the National Council (JCM) the President is pleased to decide that no restriction should be imposed only on the ground that husband/wife is also a Govt. servant and is living together in the hired/owned accommodation. In such cases normal amount of HRA may be granted to them as per their entitlement subject to fulfillment of other conditions for drawal of the allowance.

2. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, these orders issue after consultation with the Comptroller and Auditor General of India."

Though the Union Government had taken this policy decision on 8 November 1988, the State Government took a rather long period of time to decide upon the admissibility of house rent allowance to both spouses when they happen to be government servants and are living together in hired or, as the case may be, owned accommodation. On 7 March 1996, the State Government issued an office memorandum clarifying that where both spouses are officers of an All India Service but are deputed to the State Government, each of them would be entitled to their normal HRA as allowable under Rules though they may be residing in the same accommodation. The rationale for this was explained in paragraph-4 of the memorandum. It appears that in a situation where official accommodation was not provided, the State was liable to pay at a higher rate over and above the house rent allowance and it was, therefore, clarified that while both spouses would be entitled to HRA under each of their applicable entitlements, the additional amount would not be paid. This office memorandum of the State Government dated 7 March 1996 governed employees of All India Services who are deputed to the service of the State.

Ultimately, the State Government has now taken a policy decision which is reflected in its circular dated 11 February 2015 to govern the employees of the State Government. The circular now clarifies that while both the spouses may be residing together in the same accommodation, owned or rented, each of them would be entitled to payment of house rent allowance as allowable under their Service Rules.

These are evidently matters of financial policy. If each of the spouses who is an employee of the State is posted to a different location, it cannot be denied that both would be entitled to the payment of house rent allowance subject to compliance with other requirements. The State Government has now taken a policy decision that spouses who are posted together and are living in one and in the same accommodation should not be deprived of the normal HRA allowable to each of them.

We see no reason to intervene in such a determination. There is no illegality in making such a determination. Spouses who are posted together and where both are employed in the service of the State should not be placed at a comparative disadvantage merely because both of them are employees of the State and being married, reside together in one accommodation. Whether both the spouses should be entitled to HRA or otherwise is a pure matter of financial policy. As the Principal Secretary, Finance has clarified, the State Government does consider genuine demands of employees raised from time to time subject to the requirement of meeting the expenditure from the exchequer. The fact that a demand is in conformity with a decision which has already been taken by the Union Government in respect of Central Government employees could have weighed with the State Government in taking a similar decision applicable to the employees of the State. Hence, we find no illegality in that decision.

The second relief which has been claimed is in regard to recoveries to be made from those employees of the State who, prior to 11 February 2015, wrongly claimed house rent allowance on account of the service of both the spouses, each of them being employed in the State service. The issue is whether the Court in a PIL should intervene in what is essentially a service matter. The basic principle is that matters relating to recoveries are governed by service conditions. The service conditions will define whether and if so, when and under what manner, recoveries should be made.

Bearing in mind the well settled principles of law laid down by the Supreme Court, we are of the view that in a PIL raising a service dispute, which prayer clause (ii) would raise, the Court should not issue any such direction. This will of course not preclude the State from seeking recourse to its rights and remedies in accordance with law on which we make no observation particularly in the absence of any affected employee before the Court. 

For these reasons and having considered the matter in its perspective, we find no reason to entertain the petition.

The petition is, accordingly, dismissed.

There shall be no order as to costs.

Order Date :- 11.8.2015

RK

(Dr D Y Chandrachud, CJ)

(Yashwant Varma, J)

Ward of government employee will study in government school

---

AFR

Reserved on 25.05.2015 

Delivered on 18.08.2015 

Court No. - 34

1) Case :- WRIT - A No. - 57476 of 2013

Petitioner :- Shiv Kumar Pathak And 11 Others

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Ashok Khare,Siddharth Khare

Counsel for Respondent :- C.S.C., A.K. Yadav

(2) Case :- WRIT - A No. - 28003 of 2015

Petitioner :- Umesh Kumar Singh And 4 Others

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Kshetresh Chandra Shukla

Counsel for Respondent :- C.S.C., A.K. Yadav

(3) Case :- WRIT - A No. - 28977 of 2015

Petitioner :- Bhagwati Prasad

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Kshetresh Chandra Shukla

Counsel for Respondent :- C.S.C., Shravan Kumar Pandey

(4) Case :- WRIT - A No. - 58712 of 2013

Petitioner :- Jayant Kumar Singh And Anr.

Respondent :- State Of U.P.& 2 Ors.

Counsel for Petitioner :- Anil Kumar Aditya,Ajay Kumar Pandey

Counsel for Respondent :- C.S.C.,Deo Dayal

(5) Case :- WRIT - A No. - 62241 of 2013

Petitioner :- Sabarjeet Verma And 3 Ors.

Respondent :- State Of U.P.& 2 Ors.

Counsel for Petitioner :- D.P.Singh,Vishnu Gupta

Counsel for Respondent :- C.S.C.,B.P.Singh

(6) Case :- WRIT - A No. - 50787 of 2013

Petitioner :- Satya Prakash Singh And 4 Ors.

Respondent :- State Of U.P.& 3 Ors.

Counsel for Petitioner :- Shailesh Upadhyay,Radha Kant Ojha

Counsel for Respondent :- C.S.C.,Sayed Nadeem Ahmad

(7) Case :- WRIT - A No. - 57236 of 2013

Petitioner :- Sankarshan Pandey

Respondent :- State Of U.P.& 3 Ors.

Counsel for Petitioner :- Avinash Chnadra Srivastav,Abhishek Srivastava

Counsel for Respondent :- C.S.C.,Sunil Kumar Singh

(8) Case :- WRIT - A No. - 2999 of 2015

Petitioner :- Amit Kumar

Respondent :- State Of U.P. And 2 Ors.

Counsel for Petitioner :- Ashish Tripathi

Counsel for Respondent :- C.S.C.,A.K. Yadav

(9) Case :- WRIT - A No. - 15541 of 2015

Petitioner :- Rohit Kumar And 4 Ors.

Respondent :- State Of U.P. And 3 Ors.

Counsel for Petitioner :- Ashish Kumar Singh

Counsel for Respondent :- C.S.C.,A.K. Yadav,Rashmi Tripathi

(10) Case :- WRIT - A No. - 628 of 2015

Petitioner :- Abhishek Kumar Mishra

Respondent :- State Of U.P. And 8 Ors

Counsel for Petitioner :- Siddharth Khare,Ashok Khare

Counsel for Respondent :- C.S.C.,C.K. Rai,K.K. Chand,Manu Singh

Hon'ble Sudhir Agarwal, J. 

1. 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 30.08.2012 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 Vs. 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 writ petition no. 57476 of 2013. 

6. Writ Petition No. 28977 of 2015 (hereinafter referred to as "Third Petition, Group-A") is at the instance of sole petitioner, Bhagwati Prasad, who has simply sought a mandamus commanding respondents to forthwith issue letter of appointment to petitioner, appointing him to the post of Assistant Teacher, Science/Maths in Senior Primary School in District Auraiya on the basis of select list. His brief case is that he is a scheduled caste candidate, possessing qualification of Bachelor in Science and Bachelor of Education and has also passed U.P. Teachers Eligibility Test, 2011 (Upper Primary Level) with 82 marks. Pursuant to Government Order dated 11.07.2013 issued for recruitment of 29334 Assistant Teachers in Senior Primary Schools, he has been selected but his appointment has been deferred due to some litigation pending before this Court, though he is entitled to appointment. 

7. Sri R.K. Ojha, learned Senior Advocate, pointed out that in some of these matters, question of validity of Rules is attracted and the cases in which validity of Statute is involved, are within the determination of Bench presided by Hon'ble the Chief Justice, and, therefore, this Court may not have jurisdiction to hear those matters. However, this Court finds that all these cases are cognizable by Single Judge and to this extent there is no dispute between the parties. The cases in which validity of Statute is involved, and cognizable by Division Bench, the same are within the determination of Bench presided by Hon'ble the Chief Justice, but in respect of matters cognizable by Single Judge, I do not find any such determination. Moreover, all these cases have come up before this Court on the nomination made by Hon'ble the Chief Justice and, therefore, in my view, this argument has no substance. 

8. Learned counsels for parties proceeded to address the Court on merits in all these matters with request that since huge number of appointments are involved in these cases causing irreparable loss to eligible and selected candidates, therefore, these matters may be decided at an early date. I proceed accordingly.

9. Some facts in brief, as borne out from record of First Petition, necessary for adjudication of dispute are as under. 

10. Recruitment to the post of Assistant Teacher in Primary Schools comprising of Junior Primary Schools (hereinafter referred to as "Jr.P.S.") and Senior Primary Schools (hereinafter referred to as "Sr.P.S.") as also for the post of Head Master in Jr.P.S., is governed by U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "Rules, 1981"). Recruitment to the posts of Assistant Teacher in Jr.P.S. is open for direct recruitment only. Rest of the cadres, namely, Assistant Teacher in Sr.P.S. and Head Masters in Jr.P.S. and Head Masters in Sr.P.S. were all to be filled in by way of promotion. The Assistant Teachers of Jr.P.S. were entitled to be considered for promotion to the post of Assistant Teacher, Sr.P.S. and Head Master of Jr.P.S. Those who were working in the cadre of Head Master, Jr.P.S. or Assistant Teacher, Sr.P.S. were eligible to be considered for promotion to the post of Head Master, Sr.P.S. 

11. Vide Fifteenth Amendment Rules, 2012, issued vide Notification dated 30.8.2012, Rule 5 was substituted providing 50 per cent of posts of Assistant Teachers, Sr.P.S. and Head Master of Jr.P.S. by promotion and 50 per cent by direct recruitment. No change was made in the process of recruitment of Assistant Teachers of Jr.P.S. and Head Masters of Sr.P.S. 

12. As regard the procedure for preparing list for appointment to the post of Assistant Teacher, Sr.P.S./ Head Master, Jr.P.S., Rule 14 (3) as stood till Fifteenth Amendment Rules, 2012, provided for arrangement of names in descending order on the basis of marks obtained in TET, conducted by Government of Uttar Pradesh. However, the aforesaid Rule 14 (3) was substituted by Fifteenth Amendment Rules, 2012, as follows: 

"(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix. In the said rules the following appendix shall be inserted at the end." 

13. At the end of Rules, Appendix was inserted which reads as under:

"APPENDIX

[See rule 14(3)]

Quality points for selection of candidates

Name of Examination/Degree

Quality Points

High School

Percentage of marks

10

Intermediate

Percentage of marks x 2

10

Graduation Degree

Percentage of marks x 4

10

14. Sixteenth Amendment Rules, 2012 sought to substitute Rule 14 in its entirety. The substituted Rule 14 reads as under: 

"14(1)(a) Determination of vacancies and preparation of list

In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under rule 9 and at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned and teacher eligibility test passed, conducted by the Government or by the Government of India. 

14(1)(b). The Government may from time to time decide to appoint candidates, who are graduates along with B.Ed./B.Ed.(Special Education)/D.Ed. (Special Education) and who have also passed teacher eligibility test conducted by the Government or by the Government of India, as trainee teachers. These candidates after appointment will have to undergo six months special training programme in elementary education recognised by National Council of Teacher Education (NCTE). The appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under rule 9 and advertisement would be issued in at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates who are graduates along with B.Ed./B.Ed. (Special Education)/D.Ed. (Special Education) and who have also passed teacher eligibility test conducted by the Government or by the Government of India. 

14 (1)(c). The trainee teachers, after obtaining the certificate of successful completion of six months special training in elementary education, shall be appointed as assistant teachers in junior basic schools against substantive post in regular pay-scale. The appointing authority will be duty bound to appoint the trainee teachers as assistant teachers within one month of issue of certificate of successful completion of said training. 

(2) The appointing authority shall scrutinize the applications received in pursuant of the advertisement under clause (a) or (b) of sub-rule (1) of Rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 

(3) (a). The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidates shall be arranged in accordance with the quality points specified in the appendix-I. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher. 

(b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (b) of sub-rule (1) of rule 14 shall then been arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-II. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher. 

(c) The names of candidates in the list prepared in accordance with clause (c) of sub-rule (1) of rule 14 for appointment as assistant teacher shall be same as the list prepared under clause (b) of sub-rule (3) of rule 14 unless the candidate under the said list is unable to successfully complete the six month special training course in elementary education in his first attempt. If the candidate successfully completes the six month special training in his second and final attempt, the candidate's name shall be placed under the names of all those candidates who have completed the said six months special training in their first attempt.

(4) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). 

(5)The list prepared under sub-rule (2) and arranged in accordance with clause (a) or (b) of sub-rule (3) of rule 14 shall be forwarded by the appointing authority to the Selection Committee." 

(emphasis added) 

15. The existing Appendix which came to be inserted vide Fifteenth Amendment Rules, 2012 was specified as Appendix-I, and, vide newly added Rule 14 (3) (b), another Appendix i.e. Appendix-II was inserted which reads as under: 

"APPENDIX-II

[See rule 14(3)(b)]

Quality points for selection of candidates

Name of Examination/Degree

Quality Points

High School

Percentage of marks

10

Intermediate

Percentage of marks x 2

10

Graduation Degree

Percentage of marks x 4

10

Bachelor of Education (B.Ed.)/

B.Ed. (Speciation Education)/

D.Ed. (Special Education)

Percentage of marks x 3

10

16. Appendix-II, as inserted by Sixteenth Amendment Rules, 2012, would apply to the vacancies which are notified to be filled in by candidates, possessing qualifications mentioned in Rule 14 (1) (b), as inserted by Sixteenth Amendment Rules, 2012, but if vacancies are notified with reference to Rule 14 (1) (a) read with Sub-Rule 2 of Rule 14, then list has to be prepared as per Rule 14 (3) (a) read with Appendix-I which means the Appendix as inserted by Fifteenth Amendment Rules, 2012. 

17. By Government Order (hereinafter referred to as "G.O.") dated 11.7.2013, State Government determined 29334 vacancies of Assistant Teachers, i.e., 14667 Assistant Teachers (Maths) and 14667 Assistant Teachers (Science) in Sr.P.S. to be filled in under 50 per cent direct recruitment quota, in accordance with Rules, 1981, as amended from time to time. The eligibility qualifications mentioned in para 2 (1) of the G.O. 11.7.2013 read as under: 

^^1- vkosnu gsrq ik=rk%&

¼d½& 'kSf{kd vgZrk& mPp izkFkfed fo|ky;ksa esa xf.kr @ foKku fo"k; ds lgk;d v/;kid in ij fu;qfDr gsrq ,sls vH;FkhZ ik= gksaxs tks Hkkjr esa fof/k }kjk LFkkfir fo'ofo|ky; ls ch0,l0lh0 dh mikf/k ,oa nks o"khZ; ch0Vh0lh0] fof'k"V ch0Vh0lh0 ,oa ,u0lh0Vh0bZ0 }kjk ekU;rk izkIr laLFkkvksa ls f'k{kk Lukrd ¼ch0,M0½] ;k ch0,M0 ¼fo'ks"k f'k{kk½ Hkkjrh; iquokZl ifj"kn ¼vkj0lh0vkbZ0½ }kjk ekU;rk izkIr ikB~;dze mRrh.kZ gksaA lkFk gh mRrj izns'k vFkok Hkkjr ljdkj }kjk d{kk 6&8 gsrq vk;ksftr v/;kid ik=rk ijh{kk lQyrkiwoZd mRrh.kZ fd;s gksaA

¼[k½& vk;q& mPp izkFkfed fo|ky; esa lgk;d v/;kid ds in ij lh/kh HkrhZ ds fy, vH;FkhZ dh vk;q 01 tqykbZ] 2013 dks U;wure 21 o"kZ gksuh pkfg, vkSj vf/kdre 35 o"kZ ls vf/kd ugha gksuh pkfg,A 

ijUrq vuqlwfpr tkfr@ vuqlwfpr tutkfr @ vU; fiNM+k oxZ ds vH;fFkZ;ksa ds ekeyksa esa mPprj vk;q lhek 05 o"kZ vf/kd gksxhA 

ijUrq ,sls vH;FkhZ tks HkwriwoZ lSfud gSa muds fy, vk;q dh mPprj lhek esa NwV ^^;fn lsuk ds fdlh HkwriwoZ lSfud }kjk lsuk esa dh x;h lsok dh lEiw.kZ vof/k mldh okLrfod vk;q esa ls ?kVk nh tkrh gS] vkSj ;fn bl izdkj ?kVk;h x;h vk;q fu/kkZfjr vf/kdre vk;q lhek ls 03 o"kZ ls vf/kd u gks rks ;g le>k tk;sxk fd og ,slh lsokvksa rFkk inksa ij HkrhZ dh vk;q ls lEcfU/kr 'krksZa dks iwjk djrk gSA^^ ysfdu vH;FkhZ dh okLrfod vf/ko"kZrk vk;q ¼62 o"kZ½ ls vuf/kd gksuh pkfg,A 

ijUrq ;g Hkh fd fodykax vH;fFkZ;ksa ds ekeysa esa mPprj vk;q lhek 10 o"kZ vf/kd gksxh fdUrq fdlh Hkh n'kk esa fu;qfDr dh frfFk dks vH;FkhZ dh vk;q 50 o"kZ ls vf/kd ugha gksxhA** (emphasis added) 

"1. Eligibility for applying- 

(A) Educational qualification - For the appointment on the post of Assistant Teacher of mathematics/science subject in upper primary schools, those candidates shall be eligible who have B.Sc. degree from a university established by law and have passed two-year B.T.C., Special B.T.C., and B.Ed. from institutions recognised by the NCTE (National Council of Teachers' Education) or B.Ed (Special Education) course recognised by the Rehabilitation Council of India (R.C.I.). Simultaneously, the candidate must have successfully qualified in the Teachers' Eligibility Test for classes 6 to 8 organised by the Government of U.P. or Government of India. 

(B) Age - For the direct recruitment on the post of Assistant Teacher in Upper Primary Schools, the candidate should be aged at least 21 years and not more than 35 years on July 1, 2013 . 

Provided that in case of the candidates belonging to Scheduled Castes/Scheduled Tribes/Other Backward Classes, the upper age limit shall be relaxed by 5 years.

Provided that as for relaxation in upper age limit for such candidates who are ex-servicemen, "if total period of service rendered by any ex-servicemen is subtracted from his real age, and if so subtracted age exceeds the upper age limit by not more than 03 years, then he shall be treated to fulfil the conditions related to the age of recruitment for such services and posts" but it should not exceed the candidate's actual superannuation age (62 years). 

Provided that in case of physically handicapped persons, the upper age limit shall be 10 years more, but the age of candidate shall not, in any case, be more than 50 years on the date of appointment"

(English Translation by the Court)

18. From perusal of above, it is clear that candidate possessing qualification of B.Sc. degree and 2 years B.T.C., Special B.T.C. and B.Ed. or B.Ed. (Special Education) from institutions, recognized by National Council for Teachers Education or Bhartiya Punarvas Parishad, would be eligible to appear in the aforesaid selection. 

19. Clause 9 of para 2 of G.O. Dated 11.7.2013 provides procedure for selection and reads as under: 

^^9& p;u izfdz;k&

d& vH;fFkZ;ksa ds p;u@ fu;qfDr v/;kid lsok fu;ekoyh 1981 ¼v|ru ;Fkk la'kksf/kr½ rFkk p;uksaijkUr v/;kid dh rSukrh v/;kid lsok fu;ekoyh 2008 ¼v|ru ;Fkk la'kksf/kr½ ds vuqlkj fd;k tk;sxkA p;u@ fu;qfDr gsrq ofj"Brk dze dk fu/kkZj.k v/;kid lsok fu;ekoyh ds ifjf'k"V&^d* esa fo|eku izfdz;kuqlkj rS;kj fd;k tk;sxkA

[k& mijksDrkuqlkj p;fur vH;fFkZ;ksa dh lwph ftyk csfld f'k{kk vf/kdkjh }kjk fuxZr dj dkfUlfyax ds ek/;e ls muds 'kSf{kd vfHkys[kksa dh tkWap dj ewy vfHkys[kksa dks tek djk fy;k tk;sxkA lgh ik;s x;s vH;fFkZ;ksa ds 'kSf{kd vfHkys[kksa dk lR;kiu lEcfU/kr laLFkkvksa ls djk;k tk;sxkA

x& ,sls vgZ p;fur vH;fFkZ;ksa dk LokLFk ijh{k.k ftyk csfld f'k{kk vf/kdkjh }kjk esfMdy cksMZ xfBr djkdj djk;k tkuk vfuok;Z gksxkA

?k& vfUre :i ls p;fur vH;fFkZ;ksa dks tuin ds ,sls fo|ky;ksa esa lgk;d v/;kid mPp izkFkfed fo|ky; ds fu/kkZfjr osrueku esa ,d o"kZ ds ifjoh{kk dky ij fu;qDr fd;k tk;sxk tgkWa xf.kr@ foKku ds f'k{kd dk in fjDr gksA** 

(emphasis added) 

" 9- Selection process - 

A - Selection/appointment of the candidates shall be undertaken according to Adhyapak Sewa Niyamawali 1981 (Teachers' Services Rules) (as amended & updated) and posting of the teachers after the selection shall be carried out under the provisions of Adhyapak Sewa Niyamawali 2008 (Teachers' Service Rules) (as amended & updated). For selection/appointment, the order of seniority shall be determined and prepared on the basis of the procedure specified in enclosure -'ka' of Adhyapak Sewa Niyamawali (Teacher's Services Rules) . 

B- After getting the list of the candidates selected as above issued through the District Basic Siksha Adhikari and getting their original educational records verified through counselling, the original records shall be caused to be deposited. Educational records of the candidates found correct shall be got verified by the concerned institutions. 

C- It shall be mandatory for the District Basic Siksha Adhikari to go for medical tests for such eligible selected candidates by constituting a medical board. 

D - Finally selected candidates shall be appointed on one year of probation in the pay-scale fixed for Assistant Teacher, Upper Primary Schools, in those schools of the district where the post for mathematics/science teacher is vacant." 

(English Translation by the Court) 

20. The grievance of petitioners is that under the Appendix inserted by two Amendment Rules of 2012, no provision giving any weightage in recruitment process, to the scores in TET has been made. TET has been considered only a qualifying examination conferring eligibility for appointment to the post of Assistant Teacher, Sr.P.S. and Head Master, Jr.P.S. but for the purpose of preparation of merit list, no weightage has been given to scores of TET. 

21. It is said that a Full Bench of this Court in Shiv Kumar Sharma and others Vs. State of U.P. and others 2013 (6) ADJ 310 held that guidelines formed by NCTE providing weightage to TET have to be followed by State. It is binding. Since no such weightage was given under Fifteenth and Sixteenth Amendment Rules, 2012, the procedure prescribed in Appendix-I is bad. Attention of this Court is also drawn to the judgment dated 20.11.2013 in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra) and other connected appeals, whereby Division Bench of this Court struck down Rule 14 (3) of Fifteenth Amendment Rules, 2012 and consequently set aside G.O. dated 31.8.2012 and the communication dated 31.8.2012. 

22. It is submitted that once Rule 14 (3) of Fifteenth Amendment Rules, 2012 has been struck down, it has taken away Appendix also, Sixteenth Amendment Rules, 2012 insofar as it declares the existing appendix as Appendix-1 and inserted Appendix-2 is clearly redundant since it seeks to substitute a provision which is/was not existing in the Statue book, having been declared ultra vires. Rule 14 (3) as inserted by Sixteenth Amendment Rules, 2012 is inoperative and not possible to be implemented at all. In any case, it also suffers from the same vice as held in Shiv Kumar Pathak (Supra). 

23. Sri Khare contended that it is in this background of facts this Court has to consider the consequence and effect of striking down of Rule 14 (3) of Fifteenth Amendment Rules, 2012. 

24. Since entire argument is confined now with respect to the manner in which list of candidates, who have applied, pursuant to an advertisement for appointment to the post of Assistant Teacher, Sr.P.S., and, Head Master, Jr.P.S. has to be prepared, scope of scrutiny by this Court is quite narrowed down. I would prefer simultaneously to quote Rules 14 (2) and (3) as they stood before Fifteenth Amendment Rules, 2012, substituted by Fifteenth Amendment Rules, 2012 and further substituted by Sixteenth Amendment Rules, 2012, which read as under: 

Rules 14 (2) and (3) as they stood before Fifteenth Amendment Rules, 2012

Rules 14 (2) and (3) substituted by Fifteenth Amendment Rules, 2012

Rules 14 (2) and (3) substituted by Sixteenth Amendment Rules, 2012 

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement under clause (a) or (b) of sub-rule (1) of rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 

(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that their names shall be placed in descending order on the basis of the marks obtained in Teacher Eligibility Test conducted by the Government of Uttar Pradesh.

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher. 

(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix. In the said rules the following appendix shall be inserted at the end. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher.

(3)(a) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-I. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher 

(b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (b) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-II. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher

(emphasis added to show changes made) 

25. Prior to Fifteenth Amendment Rules, 2012, Rule 14 (2) and (3) required preparation of list by appointing authority of such persons as appear to possess prescribed academic qualifications and eligible for appointment, in descending order on the basis of marks obtained in TET, conducted by Government of U.P. Where two or more candidates have obtained equal marks, the candidate senior in age was to be placed higher. 

26. Fifteenth Amendment Rules, 2012 changed the criteria for preparation of list. It than provided that names shall be arranged in order of quality point marks prescribed in Appendix. The Appendix was inserted at the end of Rules. The said Appendix provided quality point marks based on High School, Intermediate and Graduation decree as also training including theory and practical. There is no description of TET for the purpose of determining quality point marks in the Appendix. 

27. Sixteenth Amendment Rules, 2012 though maintained the same criteria, but has divided recruitment in clauses 14 (1)(a) and (1)(b).The criteria for preparation of list in respect of vacancies under Rule 14 (1) (a) has been given in Rule 14 (3)(a) and Appendix-1 under Sixteenth Amendment Rules, 2012. The vacancies determined under Rule 14(1)(b) have to be arranged as per the criteria provided in Rule 14(3)(b) read with Appendix-II. 

28. The difference is that for Appendix-II, since eligible candidate also possess qualification of B.Ed./B.Ed.(Special Education)/D.Ed. (Special Education), therefore, for the purpose of quality point marks, the said qualifications have been added in Appendix-II, otherwise, in substance, there is no difference in Appendix-I and II. 

29. Interestingly, Sixteenth Amendment Rules, 2012 contains no Appendix-I. Instead, it refers to existing Appendix in Rules, 1981 as Appendix-I and inserted a new Appendix as Appendix-II. It is admitted by learned Standing Counsel that under Rule 14(3)(a) of Sixteenth Amendment Rules, 2012, what is talked of Appendix-I is nothing but the Appendix which was inserted vide Rule 14(3) of Fifteenth Amendment Rules, 2012. Thus it is not in dispute that what is talked of Appendix-I in Rule 14(3)(a) of Sixteen Amendment Rules, 2012 is the same as is referred and inserted vide Rule 14(3) of Fifteenth Amendment Rules, 2012. 

30. Now what has come on record is that Rule 14(3) of Fifteenth Amendment Rules, 2012 has been struck down in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra), deciding 29 appeals by a common judgment dated 20.11.2013 by Division Bench consisting of Hon'ble Ashok Bhushan and Hon'ble Vipin Sinha, JJ. The Division Bench has struck down Rule 14(3) on the ground that it is arbitrary, unreasonable and violative of Article 14 of the Constitution. The relevant discussion and findings are as under: 

"The 15th amendment rules has been challenged on the ground of it being arbitrary and unreasonable being violative of Article 14 of the Constitution. The notification dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being under a Parliamentary enactment has to prevail over any rules made by the State under a State Act. The Rules, 1981 right from 1993 contains an Appendix which provides a formula for selecting a teacher. Appendix indicates that selection was based only on the educational qualification of an candidate including the training qualification. After the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education, the State amended its Rules, 1981 by 12th amendment rules to bring it in conformity with the above notification and guidelines. The 12th amendment rules was perfectly in accordance with law and the challenge to the aforesaid rules have also been repelled by this Court in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The decision of the State Government not to give any weightage to the marks obtained in the Teacher Eligibility Test Examination-2011 cannot be said to be in conformity with the guidelines of the National Council for Teacher Education referred to above and was clearly arbitrary. The Full Bench of this Court in Shiv Kumar Sharma's case (supra) has already held that the State Government cannot disregard the guidelines of National Council For Teacher Education dated 11.2.2011. The 15th Amendment Rules is thus also contrary to law declared by this Court. The Teacher Eligibility Test (Examination-2011) which has been recognised as an essential qualification for the teachers selection, hence without giving any weightage to the said examination the State cannot proceed with the selection. As noted above, the allegations made against few candidates of committing irregularities in the Teacher Eligibility Test or involvement in criminal offence cannot be a ground to deny benefit of Teacher Eligibility Test to lacs and lacs of the candidates against whom there is neither any allegation nor any charge. The State having not cancelled the Teacher Eligibility Test-2011 and having allowed the Teacher Eligibility Test to be utilised for qualification of candidates ought to have given full effect to the result of the Teacher Eligibility Test examination. The allegations of irregularities and involvement in criminal offence by some candidates was fully neutralised by the State's decision to debar any such candidates from the selection against whom there are allegations of irregularities or involvement in criminal offence. The High Powered Committee has further stated in its report that an undertaking be taken on an affidavit from all the candidates that in event anything adverse is found against them, their selection shall be cancelled. The State having given effect to the notification dated 23.8.2011 as well as the guidelines dated 11.2.2011 issued by the National Council for Teacher Education by amending its rules by 12th amendment rules, which was in consonance with the scheme under the Act, 2009, a Parliamentary enactment cannot be allowed to go back and resort to its old criteria for selection which was prevalent prior to the Act, 2009 and prior to the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the view that Rule 14(3) of the 15th amendment rules by which the criteria for selection was changed has to be held to be arbitrary and unreasonable and deserves to be struck down. .... 

In view of the foregoing discussions, we conclude that the decision of the State Government to change the criteria of selection by restoring the criteria of selection as prevalent prior to 12th amendment rules was not in conformity with law. The 15th amendment rules, in so far as Rule 14(3) as well as the Government Order dated 31.8.2012 were also not sustainable."

(emphasis added) 

31. Having said so, Division Bench also set aside G.O. Dated 31.08.2012, issued consequent to the aforesaid amendment, holding that advertisement dated 30.11.2011 has become ineffective and stands cancelled. Thereafter the Court granted relief in the following manner: 

In the result all the Special Appeals are allowed to the following extent: 

1. The Government Order dated 26.7.2011 insofar as it directs for restoration of criteria for selection as was prevalent prior to 12th amendment rules is set-aside. 

2.The U.P. Basic Education (Teachers) Service Amendment Rules, 2012 (15th Amendment Rules dated 31.8.2012) in so far as Rule 14 (3) is concerned is declared to be ultra-vires to Article 14 of the Constitution and are struck down. Consequently, the Government Order dated 31.8.2012 as well as the communication dated 31.8.2012 issued by the board of Basic Education are set-aside. 

3. Respondents are directed to proceed and conclude the selection as per the advertisement dated 30.11.2011 as modified on 20.12.2011 to its logical end within the time allowed by the Central Government vide its notification issued under Section 23 (2) of the Act, 2009. 

4. The judgment of the learned Single Judge is modified to the above extent. (emphasis added) 

32. This Court has no manner of doubt, when Rule 14(3) as inserted by Fifteenth Amendment Rules, 2012 has been struck down vide Court's judgment dated 20.11.2013, it would result in making this provision, non-est. By that time, G.O. dated 31.8.2012 providing for recruitment was already issued. It has referred to Appendix-A i.e. Appendix-I as inserted in Rules, 1981. Once it is struck down, it disappears from its very inception. Therefore, any preparation of list following Appendix-I of Rule 14 (3) as inserted by Fifteenth Amendment Rules, 2012 would be clearly illegal and erroneous. 

33. The case set up by respondent-State is that this selection has been finalized in accordance with Rules, 1981, as amended by Fifteenth Amendment Rules, 2012 and Sixteenth Amendment Rules, 2012. Admittedly they have followed Rule 14(3) and its Appendix, as substituted and inserted by Fifteenth Amendment Rules, 2012, read with Sixteenth Amendment Rules, 2012. 

34. Thus, the only question up for consideration is, whether respondents-authorities are justified in preparing list of selected candidates in accordance with Rule 14(3) read with its Appendix, as substituted by Fifteenth Amendment Rules, 2012 read with Rule 14(3) of Sixteenth Amendment Rules, 2012. 

35. Whenever a provision, whether principal or subordinate legislation, is struck down, being ultra vires and/or violative of any provision of Constitution, and, in particular, fundamental rights under Part-III of the Constitution, in view of declaration contained in Article 13(2) of the Constitution, such provision is void-ab-initio. It is like a stillborn provision incapable of repeal or substitution of an existing provision. 

36. In N.P.V. Sundara Vs. State of Andhra Pradesh AIR 1958 SC 468 considering the doctrine of still-born piece of legislation a Constitution Bench said: 

"If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect to breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment." 

37. In Sagir Ahmad Vs. The State of U.P. & Ors AIR 1954 SC 728 the Court examined challenge to the Constitutional validity of U.P State Transport Act, 1951 under which the State was enabled to run Stage Carriage Service to the exclusion of others. In exercise of its power under the Act, the State Government made a declaration extending the Act to a particular area and frame a scheme for operation of stage carriage service on certain routes. At the relevant time, State did not have the power to deny citizen of his right to carry on transport service. However, after the Constitution (First) Amendment Act of 1951, the State became entitled to carry on any trade or business either by itself or through Corporation, owned or controlled by it, to the exclusion of private citizens wholly or in part. One of the question raised was whether Constitution (First) Amendment Act could be invoked to validate an earlier legislation. The Court held that the Act was unconstitutional at the time of enactment and therefore it was stillborn and could not be vitalized by a subsequent amendment of the Constitution removing constitutional objection and must be re-enacted. Hon'ble Mukherjea, J. speaking for the Court referred to Prof. Cooley in his work on "Constitutional Limitations" (Vol. I page 384) and said: 

"a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted". 

38. The Hon'ble Court further observed that it is of the view that this is a sound law.

39. This view was reiterated in Deep Chand Vs. The State of U.P. & Ors. AIR 1958 SC 648 where the Court said that a plain reading of Article 13(2) indicates, without any reasonable doubt, that prohibition goes to the root of the matter and limits State's power to make law; the law made in spite of the prohibition is a still-born law. 

40. Again another Constitution bench in Mahendra Lal Jaini Vs. State of U.P. AIR 1963 SC 1019 reiterated the above view in para 22 of the report. It says,

"..it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse." (emphasis added) 

41. This view has been followed in Rakesh Vs. Dr. JT 2005 (12) SC 1. 

42. Once a Rule is struck down as arbitrary, unreasonable and violative of Article 14, the effect is as if such a provision was never in effect, being 'stillborn'. Even if, in a given case, in subsequent amendment, there is a reference of such provision which has been struck down, yet it cannot be followed being non-est. The mere fact that before being struck down, it has been referred to in a subsequent amendment, would make no difference. 

43. Respondents-authorities, in my view, therefore were not entitled to prepare list of candidates selected for appointment in accordance with Rule 14(3) of Fifteenth Amendment Rules, 2012, read with Appendix which has been referred to as Appendix-I in Sixteenth Amendment Rules, 2012, since the Appendix which has been subsequently referred to as Appendix-I in Sixteenth Amendment Rules, 2012, has rendered non-est. Rule 14(3) of Fifteenth Amendment Rules, 2012 in its entirety having been struck down by this Court as arbitrary and unreasonable, it disappears, as if, it never existed. Hence list prepared by taking into account aforesaid Appendix is clearly illegal. 

44. The next question, which is though necessary but incidental, and of utmost importance arises whether Sub-rule (3) of Rule 14 as it stood before Fifteenth Amendment Rules, 2012 would stand revived or after striking down Rule 14(3) of Fifteenth Amendment Rules, 2012 it would result in a gap in the Rules requiring an appropriate legislation so as to bring on the Statute-book, valid Rule 14 (3). 

45. In B.N. Tiwari Vs. Union of India and others AIR 1965 SC question came up for consideration was, whether old Rule revives after substituted Rule is struck down. The Central Services Rules of 1952 provided for carry forward rule whereby unfilled reserved vacancies of a particular year could have been carried forward for one year. In 1955, the said Rules of 1952 were amended by substitution and another Rules providing that unfilled unreserved vacancies of a particular year can be carried forward for two years was brought in. 1955 amendment of Rule was declared ultra vires. The question was, whether this declaration would result in revival of 1952 Rules. A Constitution Bench said that 1952 Rules having already been repealed and substituted by 1955 Rules, after striking down of 1955 Rules, old Rule would not revive. 

46. In Firm A. T. B. Mehtab Majid and Co. v. State of Madras AIR 1963 SC 928 also the Court held, where an old Rule has been substituted by a new Rule, it ceases to exist and would not get revive when the new Rule is held invalid. 

47. In West U.P. Sugar Mills Association and others Vs. State of Uttar Pradesh and others 2002 (2) SCC 645, following the authorities in B.N. Tiwari (supra) and A. T. B. Mehtab Majid and Co. (supra) a three-Judge Bench also took the same view by showing its total agreement with the statement of law declared in the aforesaid decisions. The Court also said, if there would be still a modification in existing law and subsequent modification is held to be void, it would mean as if earlier law has never been modified or repealed and may continue to be in force but where the earlier provision is repealed by substitution and another provision is brought in, earlier provision will not revive when subsequent provision is struck down. Para 15 of judgment in West U.P. Sugar Mills Association (supra) reads as under: 

"15. It would have been a different case where a subsequent law which modified the earlier law held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded with the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here. It is not disputed that the State government under Section read with Section of the Act, has power to frame rule prescribing the society commission. The State government by substituting new Rule 49 never intended to keep alive the old rule. The totality of the circumstances shows that the old rule was deleted and came to be substituted by new Rule 49 and, therefore, we are of the view that after new Rule 49 ceased to be operative, the old Rule 49 did not revive." (emphasis added) 

48. When a provision is substituted by replacing another provision, substitution results in repeal of existing provision. Insertion of another provision brings the effect of replacement to new provision. When the Legislature substitute an existing provision by new one, it means it did not intend to keep alive old rule. There is a distinctions between "supercession" and "substitution". "Substitution" has two steps. First the old rule is made cease to exist, and next, the new rule is brought into existence in its place, while supercession has single stroke of overriding the existing provision. This distinction has been discussed by a three-Judge Bench in Koteswar Vittal Kamath Vs. K. Rangappa Baliga & Co. 1969 (3) SCR 40 and followed in Zile Singh Vs. State of Haryana 2004 (8) SCC 1. 

49. Therefore, Rule 14 (3) of Fifteenth Amendment Rules, 2012 having been struck down will not revive the earlier provision and Rule 14 (3) (a) of Sixteenth Amendment Rules, 2012 having referred to a provision, i.e. Appendix, which has already been struck down, is inoperative and cannot be acted upon. 

50. There is one more angle from which the matter can be examined. Rule 14 (3) of Fifteenth Amendment Rules, 2012 was already struck down by Division Bench in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra). Rule 14(3)(a) of Sixteenth Amendment Rules, 2012 in all respects is pari-materia to Rule 14 (3). Therefore, the reasons which impelled this Court to declare Rule 14(3), Fifteenth Amendment Rules, 2012 ultra vires equally apply to Rule 14(3) (a) and (b) of Sixteenth Amendment Rules, 2012 also. I have no hesitation in my mind that for the reasons contained in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra), Rule 14 (3) of Sixteenth Amendment Rules, 2012 also cannot be sustained and it is also arbitrary and ultra vires.

51. In view of the above, Writ Petitions No. 57476 of 2013 and 28003 of 2015 are allowed partly. Respondents are directed to prepare the list of candidates under Rule 14 of Rules, 1981 afresh, in accordance with law and thereafter proceed to make appointment accordingly. 

52. Writ Petition No. 28977 of 2015 is disposed of with the direction that in case petitioner's name finds place in the list now re-prepared by respondents in the light of this judgment in First and Second Petition, respondents shall proceed to make appointment of petitioner without any further delay. 

Group-B: 

53. Writ Petition No. 58712 of 2013 (hereinafter referred to as "First Petition, Group-B") is at the instance of two petitioners, namely, Jayant Kumar Singh and Pramod Kumar, who have sought a writ of certiorari for quashing Notification dated 29.08.2013 published in daily newspaper dated 30.08.2013 for appointment of 151 Assistant Teachers of Maths and 151 Assistant Teachers of Science in Sr.P.S. (i.e. the Junior High School) and to declare the amendment made in Rule 5 providing 50 per cent recruitment by promotion and 50 per cent by direct recruitment as ultra vires on the ground that amendment is harsh, unjust and otherwise illegal being discriminatory. 

54. Writ Petition No. 62241 of 2013 (hereinafter referred to as "Second Petition, Group-B") has been filed by four petitioners, namely, Sabarjeet Verma, Arun Kumar Singh, Manik Chandra Patel and Ram Ashraya Yadav, seeking a writ of certiorari for quashing GO dated 11.07.2013 insofar as it proceeds for recruitment of Assistant Teachers in Sr.P.S. by direct recruitment. The basic contention is that under Rules, 1981, earlier, recruitment on the aforesaid post of Assistant Teachers, Sr.P.S. was solely on the basis of promotion but by means of amendment, now 50 per cent vacancies have been made available for direct recruitment and only 50 per cent are available for promotion. This reduction in number of vacancies available for promotion is arbitrary and illegal. It is said that this amendment made by Sixteenth Amendment Rules, 2012 is bad. 

55. Writ Petition No. 50787 of 2013 (hereinafter referred to as "Third Petition, Group-B") is at the instance of five petitioners, Satya Prakash Singh, Sanjay Kumar Dwivedi, Gyan Prakash Yadav, Anil Kumar Singh and Archana Kumari, who have challenged the advertisement dated 30.08.2013 published in daily newspaper "Amar Ujala" for making recruitment on the post of Assistant Teacher, Sr.P.S. in Science Group by way of direct recruitment. They have also assailed the GO dated 11.07.2013 as ultra vires to Rule 5 of Rules, 1981 providing for direct recruitment on the aforesaid post and they have sought a mandamus, commanding respondents to proceed to make appointment only by promotion on the aforesaid posts. 

56. For the purpose of having brief facts, with the consent of learned counsels for parties, I have taken Writ Petition No. 58712 of 2013 as leading case. In this writ petition, two petitioners, namely, Jayant Kumar singh and Pramod Kumar, both were appointed as Assistant Teacher in Jr.P.S. in 2006 and 30.12.2005 respectively. Under Rules, 1981, they were entitled to be considered for promotion to the post of Assistant Teacher, Sr.P.S. or Head Master, Jr.P.S after acquiring eligibility. District Basic Education Officer, Chandauli determined 151 vacancies of Assistant Teachers in Sr.P.s. for Science and 151 vacancies of Assistant Teachers in Sr.P.S. for Maths which were to be filled in by promotion. He initiated selection process by issuing Notification dated 13.8.2013 published in Daily News Paper "Dainik Jagran". All eligible and qualified candidates were to attend counseling at District Institute of Education and Training (DIET), Chandauli on 16.8.2003. When they reached the venue, it was informed that counseling has been cancelled and next date shall be informed but none was informed. Instead, another Notification dated 29.8.2013 was published for recruitment of 151 Assistant Teachers (Science) and 151 Assistant Teachers (Maths) in Jr.P.S. by direct recruitment. The aforesaid advertisement/Notification dated 29.8.2013 published in Daily Newspaper "Dainik Jagran" on 30.8.2013 has been issued pursuant to GO dated 11.7.2013 whereby Rules 5 and 8 of Rules, 1981 have been amended, providing 50 per cent posts to be filled in by promotion and 50 per cent by direct recruitment, though earlier all these posts of Assistant Teachers, Sr.P.S. were available for promotion only. Consequently, it is contended that this amendment in the Rules is arbitrary and violative of Articles 14 and 16. 

57. It is, however, not disputed that Rule 5 was amended vide Notification dated 30.8.2012 and when advertisement dated 13.8.2013 was issued, this amendment of Rule 5 was not noticed. In fact, in ignorance of amendment of Rule 5, the authority issued notice of vacancies to be filled in by promotion, but did not proceed when this omission came to their knowledge. 

58. Basic contention of learned counsel appearing in these three writ petitions (Group-B) is that alteration in the source of recruitment and to the extent recruitment is to be made from particular source is illegal and arbitrary inasmuch petitioners on the date of appointment in feeder cadre, i.e., Assistant Teacher, Jr.P.S. had a right to be considered for promotion to all the posts of Assistant Teachers available in various Sr.P.S. by way of promotion and that right stood vested in them which cannot be divested by reducing the number of vacancies of Assistant Teacher, Sr.P.S. available to Teachers in feeder cadre. Now it has been reduced from 100 per cent to 50 per cent. 

59. In view of the above, the question, which has to be considered, is "whether an employee has a vested right in respect of quota determined for promotion in the higher post"; and, "whether the rule framing authority cannot change the extent and strength of promotion quota by exercising power of amendment of Rules". 

60. A perusal of Rules, 1981 as amended vide Fifteenth Amendment Rules, 2012 makes it clear that Rule 5 has now been substituted by another Rule 5 and it reads as under:

5- Sources of recruitment- The mode of recruitment to the various categories of posts mentioned below shall be as follows: 

5- Sources of recruitment- The mode of recruitment to the various categories of posts mentioned below shall be as follows: 

(a) (i) Mistresses of Nursery Schools

By Direct recruitment as provided in rules 14 and 15

(a) (i) Mistresses of Nursery Schools

By Direct recruitment as provided in rules 14 and 15

(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools

-Ditto-

(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools

-Ditto-

(b)(i) Head Mistresses of Nursery Schools

By promotion as provided in the rule 18;

(b)(i) Head Mistresses of Nursery Schools

By promotion as provided in the rule 18;

(ii) Head Masters and Head Mistresses of Junior Basic Schools

By promotion as provided in Rule 18;

(ii) Head Masters and Head Mistresses of Junior Basic Schools

By promotion as provided in Rule 18;

(iii) Assistant Masters of Senior Basic Schools

-Ditto-

(iii) Assistant Masters of Science-Maths for Senior Basic Schools

50% by direct recruitment and 50 % by promotion

(iv) Assistant Mistresses of Senior Basic Schools

-Ditto-

(iv) Assistant Mistresses of Science-Maths for Senior Basic Schools

-Ditto-

(v) Assistant Masters of other than Science-Maths for Senior Basic Schools

By promotion as provided in rule 18;

(vi) Assistant Mistresses of other than Science-Maths for Senior Basic Schools

-Ditto-

(v) Head Masters of Senior Basic Schools

-Ditto-

(vii) Head Masters of Senior Basic Schools

-Ditto-

(vi) Head Mistresses of Senior Basic Schools

-Ditto-

(viii) Head Mistresses of Senior Basic Schools

-Ditto- 

Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above appointment may be made by direct recruitment in the manner laid down in rule 15.

Provided that if suitable candidates are not available for promotion to the posts mentioned at (v) and (vi) above appointment may be made by direct recruitment in the manner laid down in rule 15.

61. Whether this substitution and alteration in the source of recruitment is permissible? Instead of 100 per cent promotion on the post of Assistant Teacher, Sr.P.S. now 50 per cent shall be recruited by promotion and rest 50 per cent by direct recruitment whether it affects any vested right? In my view, none of the fundamental rights have been infringed nor any vested right has been divested. 

62. The contention pre-supposes that an employee has a vested right to be governed by Rules as they stand on the date of his entry in service and rule framing authority would have no power to make amendment in the Rules in one or the other manner. Once the power of legislation is there, it can be exercised from time to time which includes new legislation or replacement of entire existing legislation by a new one. In the present case, Rule 5, as it stood earlier, provided for only source of recruitment on the post of Assistant Teacher, Sr.P.S. "by promotion". Now the rule framing authority has made a change that only 50 per cent shall be recruited by promotion and remaining 50 per cent by direct recruitment. An employee working in feeder cadre wherefrom promotion is to be made on higher post, has no vested right in respect to number of posts in higher cadre to be filled in from any particular source of recruitment. The reason being that the right conferred by Article 16 is only a fundamental right of consideration for promotion and not chance of promotion. Whenever, vacancy in higher cadre is available and under the Rules is liable to be filled in by promotion, it shall be filled in accordingly, but it cannot be said that rule framing authority cannot make any alteration with respect to quota to be determined by Rules.

63. In Dwarka Prasad and others Vs. Union of India and others 2003 (6) SCC 535, the Court said: 

"Articles 14 & 16 of the Constitution of India cannot be pressed into service to describe the fixation of lower quota for POs as discriminatory. It is well established in law that the right to be considered for promotion on fair and equal basis without discrimination may be claimed as a legal and a fundamental right under Article 14 & 16 of the Constitution but chances of promotion as such cannot be claimed as of right." (emphasis added) 

64. In Reserve Bank of India Vs. N. C. Paliwal AIR 1976 SC 2345, there was a integration of non clerical with clerical service. It was challenged as infringing the principles of equality. Court held that it is entirely a matter of State to decide to have the several different cadres or one integrated cadre in its service. That is a matter of policy which does not attract the applicability of equality clause. 

65. In State of Mysore Vs. G.B. Purohit 1967 SLR 753, the Court said that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. 

66. In Mohammad Shujat Ali and others Vs. Union of India (UOI) and others 1975 (3) SCC 76, a Constitution Bench said that mere chance of promotion is not a condition of service.

67. Here by altering the number of vacancies available for promotion by making amendment in Rules, only chances of promotion have been affected and not the right of promotion. Therefore, basic contention, in my view, stands on a fallacy and has to be rejected outright. No authority has been cited in favour of proposition that such alteration by amendment in Rules is not possible. 

68. By amending Rules, the right to be considered for promotion to the post of Assistant Teacher, Sr.P.S. has not been denied at all but what the Rule provides is that availability of vacancies to higher post now stands reduced to 50 per cent, meaning thereby, it is the chance of promotion which has been affected and not the right of promotion. Besides, it is not the case that the Rule framing authority otherwise has any incompetency in framing the Rules, therefore, by amending Rules and changing source of recruitment by providing 50 per cent by direct recruitment and 50 per cent by promotion, in my view, no invalidity has been brought in Rules and Rule 5 cannot be said to be bad in law in any manner.

69. All these writ petitions, therefore, have no substance and deserve to be dismissed. 

Group-C: 

70. The two writ petitions in Group-C, i.e., Writ Petitions No. 57236 of 2013 and 2999 of 2015 are founded on patently fallacious submissions. 

71. It is contended that in Sr.P.S., the post of Assistant Teacher should not be advertised subjectwise. The submission is thoroughly misconceived. It cannot be doubted that in Sr.P.Sc, specified subjects are taught to students. The Teachers, who have no knowledge of Science or Maths cannot be expected to teach students in the subjects of Maths and Science with appropriate efficiency. Therefore, the contention that recruitment cannot be made subjectwise is wholly misconceived. In Writ Petition No. 2999 of 2015, an attempt has been made to read the words "Subject Teachers" as constituting a single group irrespective of the subject. It is urged that it should be treated in contradiction with 'Language Teachers'. Here also purposive reasonable interpretation has to be given. The rule framing authority has divided, broadly the category of Teachers as Language Teachers, like, Hindi, Urdu, Sanskrit, English; and, for remaining subjects, it has used the words "Subject Teachers". This Court does not find any justification to read that for all subjects other than languages, there is no scope under Rules for making any distinction and even if the Teachers are required for imparting education in Science and Maths, recruitment can be made without specifying the aforesaid subjects and by recruiting persons who have no knowledge, whatsoever, in Maths and Science and are not competent at all to teach those subjects. These writ petitions, therefore, have no merit and deserve to fail. 

Group-D: 

72. The sole writ petition in Group-D is Writ Petition No. 15541 of 2015. It has been filed by 5 petitioners, namely, Rohit Kumar, Arvind Kumar, Mukesh Kumar Yadav, Buddhi Lal and Shailendra Kumar, seeking a mandamus directing respondents not to allow counselling to such professional degree holders, who are not eligible as per advertisement/notification dated 23.8.2013, as clarified by Secretary, Basic Education Board in its affidavit filed before Lucknow Bench of this Court in Writ Petition No. 5348 of 2013 and to exclude such candidates from the zone of consideration. It is suggested that the candidates possessing degree of B.Sc. (Agriculture), B.Tech., B.C.A., B.B.A., BUMS, MHMUS and B. Pharma are not eligible to apply for the post of Assistant Teacher in Sr.P.S. since these are professional degrees and cannot be treated to be Science graduation degree so as to make them eligible to participate in the aforesaid selection. Names of some of candidates are given in para 24 of the writ petition, though none of them has been made party in the writ petition.

73. I find basic submission absolutely fallacious and misconceived. Though degrees of B.Sc. (Agriculture), B.Tech., B.C.A., B.B.A., BUMS, MHMUS and B. Pharma etc. provide education in certain fields making the incumbents professional in a particular aspect, and, therefore, they are called "professional course", but it cannot be doubted at all that these all are bachelor degrees and, therefore, those, who possess these qualifications, are graduates in those disciplines. It, thus, cannot be said that when requirement is graduation, professional courses can be excluded. It is nothing but reading something which is not provided in the Rules, which, in my view, is neither permissible nor there is any compulsion to do so. In view thereof, this writ petition, in my view, lacks merits and deserves to be dismissed.

Group-E:

74. Now coming to sole writ petition in Group-E, i.e., Writ Petition No. 628 of 2015, here the question of benefit of reservation has been raised. It is said that those who have passed TET examination, taking advantage of reservation with lower marks cannot be considered against vacancies available for general category advertised for recruitment under Rules, 1981.

75. In my view, the submission is thoroughly misconceived.

76. TET examination is one of the qualifications. At the time of obtaining qualification, if some concessions are provided to the candidates belong to Other Backward Classes, Scheduled Castes or Scheduled Tribes, etc. as are permissible under Article 15 (3) and 16(3) (4) read with Article 14, it cannot be said that those concessions will debar those candidates to participate in a recruitment process against general vacancies. Earlier benefit was only in the context of acquiring qualification, and rest is a matter of contest in recruitment and appointment availing equal opportunity of employment or as provided in the Rules for reserved category candidate. Recruitment commences with advertisement. Before that, while acquiring any qualification or eligibility test, if some concession have been availed by reserved category candidates, that will not deprive them of opportunity to contest for unreserved vacancies in the recruitment. The distinction in respect of eligibility conditions, qualifications and the concessions available therefor and the benefit of reservation in recruitment has been discussed in detail by a Division Bench of this Court in Sanjeev Kumar Singh Vs. State of U.P. and others 2007(2) ALJ 86 and appellate judgment of Apex Court in Jitendra Kumar Singh and another vs. State of U.P. and others; (2010) 3 SCC 119.

77. In view thereof, the mere fact that some of the candidates have passed TET examination having benefit of reserved category candidates, cannot be treated to be an identity of those candidates to deny them participation in recruitment for the post of Assistant Teacher in question against general vacancies since it is a different phenomena and procedure vis-à-vis the TET examination. Holding of TET examination was not under Rules, 1981 while recruitment under Rules, 1981 commences with the advertisement and, therefore, it is different entirely.

78. In view thereof, I find no merits in this writ petition also and it deserves to be dismissed.

79. However, before parting, this Court finds something necessary to be said with respect to primary education in the State and shabby manner it is being dealt with by the Department and Officers responsible therefor which has resulted in multiple litigation also. It is a matter of common knowledge that basic education in State of U.P. is being administered through the Department of Basic Education, which is under the Secretary (Basic Education) and is under a separate ministry. Annual budget allocation for maintaining basic schools recognized by U.P. Board of Basic Education (hereinafter referred to as "Board") under the provisions of U.P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") is one of the highest budgetary allocations. The total number of Primary Schools, i.e. Jr.P.S. and Sr.P.S. is around 1.4 lacs which are maintained by Board. The number of teaching staff and Head Masters, therefore, also come to be in lacs. Division Bench judgment in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra) has noticed that about 2.70 lacs posts of Assistant Teachers in Primary Schools run by Board are lying vacant. That was in November' 2013. The recruitment of thousands of posts at a time used to commence but got trapped in huge litigation due to unmindful, irregular and casual approach of the official(s) responsible for managing such recruitment, lack of accountability and credibility as well as sincerity. Unmindful and casual legislation by way of frequent amendment of Rules has worsened the situation.

80. Today, judicial cognizance can be taken of the fact that there are three categories of Primary Schools running in the State of U.P., imparting education to minor children of this State. One of such categories, which is catering to the need of almost 90 per cent of the population of minor children are run by Board and in the most shabby conditions.

81. There are a very few number of Primary Schools run by elite and highly privileged category of people which are branded public schools. Some English/Convent Schools are run by Christian minority wherein children of poor and lower-middle class have virtually negligible scope. This category of Schools basically cater to the need of highly rich people, high class Bureaucrats, Ministers, peoples' representatives, like, Members of Parliament, Members of Legislative Assemblies and high-middle class people. The wards of a limited class of elite society can get education therein. Most of the people cannot meet even financial standards of fees. Admission standards are very strict and mostly available due to high resources. These Schools have best kind of infrastructures, tutorial staff and all other facilities. These Schools can be termed as 'Elite Schools'.

82. In the second category comes, those Primary Schools which are run by normally some private bodies or individuals, catering to wards of lower middle class. Though infrastructure in these Schools is not so sophisticated and ultra modern as that of Elite Schools, still is much better and comparatively even tutorial staff is sufficiently good. They may be termed 'Semi-Elite Schools'.

83. However, in the third category comes almost all Primary Schools run and managed by Board under its administration. These can be termed as 'Common-men's Schools'. They are the Schools, who cater to the entire category of rural class, urban rural class and those who cannot afford expenses of other two categories. The number of students therein constitute almost 90 per cent population of minor children in the State. The real catch lies here.

84. The Constitution has now recognized primary education as a fundamental right for children from 6 to 14 years of age, i.e., virtually upto Class-VIII. In the name of discharge of this constitutional obligation, as already said, more than 1.25 lac and odd Jr.P.S. and Sr.P.S. are being run by Board of Basic Education, for which funds are provided by State. The education in these Schools is supposed to be free, but that is how every thing is free. Virtually a complete lack of infrastructure one can find in these Schools. After more than 65 years of independence, these Schools are still struggling to have basic amenities for children, coming thereat, like drinking water, space for natural calls etc. Even classrooms are in extremely shabby and bad conditions. At many places, classes are being run in open space. The structure, if any, is in dilapidated condition. Though huge money is being invested and spent every year in the name of welfare, of basic education to the wards of poor people but actually nothing has improved. It is not difficult to understand, why conditions of these Schools has not improved. The reason is quite obvious and simple, though the State Government is not able to see. There is no real involvement of administration with these Schools. Any person who has some capacity and adequate finances, sends his child/children in Elite and Semi-Elite Primary School. They do not even think of sending their wards for primary education to Schools run and managed by Board. Whether it is the District Collector or Police Chief in the District or any other Government Servant, they ensure that their children should get primary education in Primary Schools having better infrastructure and other facilities which obviously belong to first and second categories of Primary Schools, as noted above and completely exclude third category Schools, i.e. Common-men's Schools. The public administration therefore has no actual indulgence to see functioning and requirements of these schools. These schools have become a mode of earning political mileage instead of real catering to its need.

85. The common men's schools cater the need of Primary Education to only those poor people, whom Hon'ble Mr. Justice Krishna Iyer once said, "tiny million Indians", who find it difficult to make arrangement for two times of meals what to talk of other things. Whatever is made available by system they have no choice but to avail it in conditions "as and where it is". The Government at the level of State and Central, both, are harping every time and almost very frequently on the need of improved Primary School, but their intention has not resulted in execution and reality at grass root level.

86. The hard real fact is that these institutions, run by Board of Basic Education, are victim of highest level of misappropriation, maladministration and widespread corruption. Standard of teaching is the biggest casualty. Nobody cares for making improvement in the standard of tutorial staff. A competition is going on for political reasons to make lacs of vacancies available in Primary Schools as a source to create committed voters by appointing persons, if not illiterate, but not really competent to teach children of Primary School. A competition is going on to somehow get such persons appointed as teachers in these schools whom they would not like at all to teach their own children. Initially, after making statutory rules under Act, 1972, in 1975, 1978 and 1981, the State tried to fill up the gap of teachers vacancies by appointing much lesser qualified persons i.e. Shiksha Mitra, Anganbari Karyakatri etc. A persistent effort is going on now to absorb these persons as Teachers in Primary Schools run by the Board, if necessary, even by frequent amendments in Rules, without caring but compromising with standard. Is State not answerable to the people at large that competent Teachers should be appointed in Primary Schools by those who are administering institutions so as to make such institutions at par with those where they like to have their wards taught. Since bureaucrats, politicians, rich people and others, all have their alternative channel by having their wards taught in Primary Schools falling in the category of Elite and Semi-Elite, nobody cares of the standard to be maintained in Primary Schools of the Board.

87. A competition is going on to bring standard of Common-men's Schools down, as much as possible. In my view, now the time has come where immediate attention need be drawn for improvement, not only of infrastructure in these institutions but first of all in respect of teaching staff. That is the basic purpose for which the entire system of Basic Education is, consuming huge public money from public exchequer. The time has come where State must make it compulsory to all those who gets salary, perks and other benefits from State exchequer to have their wards sent to Primary Schools maintained by Board which I have termed Common-men's Schools and not to Schools which, come in the category 1 and 2, i.e., Elite and Semi-Elite and are privately managed. In case, any one flouts this condition, a penal provision should also be made. It is only then the improvement of these institutions will be ensured by those who are responsible for its management in a proper way. It will also boost social equation. It will give an opportunity to children of common men to interact and mix-up with children of so-called high or semi high society, giving them a different kind of atmosphere, confidence and other opportunities. This would give a boost and bring revolution in changing Society from grass root level. The initial level mixing among all children will have a different consequences.

88. Moreover, when Officials/Government servants would be required to send their wards for primary education in institutions maintained by the Board, they would become serious enough to look into the requirements of concerned Primary Schools and would ensure that same are made available and Schools are run in good/best conditions and standard, else it may affect their own wards.

89. It is the lack of accountability and casual approach on the part of officials of Basic Education Department that mindless, negligent, casual amendments in Rules; defective Government Orders have been issued from time to time creating cause for multifarious litigations resulting not only in delay in appointment of Primary Teachers but also a very heavy pressure on this Court also. Had a little care been there on the part of responsible Officers in making legislation for making recruitment, huge litigation resulting in lacs of vacancies in Primary Schools maintained by Board would not have caused.

90. Therefore, the Chief Secretary, U.P. Government is directed to take appropriate action in the matter in consultation with other Officials, responsible in this regard, to ensure that the children/wards of Government servants, semi-Government servants, local bodies, representatives of people, judiciary and all such persons who receive any perk, benefit or salary etc. from State exchequer or public fund, send their child/children/wards who are in age of receiving primary education, to Primary Schools run by Board. He shall also ensure to make penal provisions for those who violate this condition; for example, if a child is sent to a Primary School not maintained by Board, the amount of fee etc. paid in such privately managed Primary School, an equal amount shall be deposited in the Government funds, every month, so long as such education in other kind of Primary School is continued. This amount collected can be utilised for betterment of schools of Board. Besides, such person, if in service, should also be made to suffer other benefits like increment, promotional avenues for certain period, as the case may be. This is only illustrative. The appropriate provisions can be made by Government so as to ensure that ward(s)/child/children of persons, as detailed above, are compelled necessarily to receive primary education in the Primary Schools run by Board.

Result:

91. In the result, subject to directions as contained above, Writ Petitions No. 57476 of 2013 and 28003 of 2015 are partly allowed. Respondents shall re-prepare the list of candidates under Rule 14 of Rules, 1981 in accordance with law and in the light of observations made above and, thereafter proceed to make appointment accordingly.

92. Writ Petitions No. 58712 of 2013, 62241 of 2013, 50787 of 2013, 57236 of 2013, 2999 of 2015, 15541 of 2015 and 628 of 2015 are dismissed.

93. Writ Petition No. 28977 of 2015 is disposed of with the direction that in case petitioner's name finds mention in the list now prepared by respondent in the light of this judgment passed in First and Second Petition, Group-A, respondents shall proceed to make appointment of petitioner without any further delay.

94. With regard to directions contained in Para 90, effective steps shall be taken by Chief Secretary within six months so as to make the aforesaid directions effective from the next academic session of Primary Schools, and, a compliance report shall be submitted to this Court by way of affidavit immediately after expiry of period of six months.

Dt. 18.08.2015

PS