SANJAI KUMAR & ORS. versus DR. PRABHAT KUMAR ETC. on 13 December 2019

[2019] 16 S.C.R. 1111

SANJAI KUMAR & ORS.

v.

DR. PRABHAT KUMAR ETC.

(Contempt Petition (Civil) Nos.1332-1360 of 2018)

In

(Civil Appeal Nos. 4347-4375 of 2014)

DECEMBER 13, 2019

[UDAY UMESH LALIT AND M. R. SHAH, JJ.]

Service Law – Assistant Teachers – Appointment of – TheContempt Petition sought enforcement of interim orders dated17.12.2014, 25.2.2015 and 7.12.2015 and the Judgment and finalorder dated 25.7.2017 – There were total 72,825 vacancies for thepost of Assistant teachers and against the said posts 43,077 wereappointed, 15,058 were undergoing training – In pursuance of theinterim orders total 66,655 teachers were appointed – In 2018,Contempt Petitions were filed submitting that though the State madeclear representation that the qualified persons would be appointed,it did not appoint the Contempt Petitioners and as such the orderspassed by the Supreme Court were violated – It was contended thatthe State Government had incorrectly calculated figure of 66,655,there was no objection to issue appointment orders in respect of12,091 candidates, including Contempt Petitioners – Held:According to the Affidavit dated 01.10.2016, out of 12091candidates, only 391 candidates were appointed as the otherseither did not take part in the selection process or had not optedfor certain Districts or could not be selected going by the cut-offfor the concerned District – Thereafter, the State published anotheradvertisement on 06.02.2016 and 08.02.2016 so that if anycandidate was left out, his candidature could be considered – Thus,the reasons for not appointing all the persons who were part oflist of 12,091 candidates were available on record from October2016 onwards – At no stage any grievance was made till the matterwas disposed of in July 2017 which gave a status of permanency– The grievance was made for the first time almost a year afterwhen these contempt petitions were filed – Nothing substantialpointed out by any of candidates or contempt petitions – Nothing

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Awrong in the process undertaken by the State Government inpursuance of various interim orders passed by the Supreme Court– Therefore, Contempt petitions directed to be closed.

Closing the Contempt petitions, the Court HELD: 1. The exercise of selecting those who had securedBminimum marks in terms of criteria devised by order dated17.12.2014 also resulted in finding 12,091 persons eligiblesubject to verification of antecedents, as was recorded in theorder dated 07.12.2015. [Para 11 (d)] [1128-B]

2. The list of these 12091 candidates was published and itCis a matter of record that the names of the contempt petitionerswere part of this list. [Para 11 (e)] [1128-C]

3. According to para 21 of the Affidavit dated 01.10.2016(which has been referred to in the order dated 22.07.2019) outof these 12091 candidates, only 391 candidates could beDappointed as the others either did not take part in the selectionprocess or had not opted for certain Districts or could not beselected going by the cut-off for the concerned District. Thisdevelopment had happened way back in October 2016 and theaffidavit was on record since then. [Para 11 (f)] [1128-D]

E4. The State thereafter published another advertisementon 06.02.2016 so that if any candidate was left out, hiscandidature could be considered. Steps were thereafter takenand another advertisement was published on 08.02.2016. Para25 of the Affidavit dated 01.10.2016 as quoted in the order dated22.07.2019, dealt with this issue in clear terms and was thus partFof the record. [Para 11 (g)] [1128-E-F]

5. Aforesaid para 25 of the Affidavit thus made it clear thatas on the date when the affidavit was filed, 64,257 vacancies werefilled up and 1,536 appointment letters were being issued inaddition. It was also stated that 862 candidates were given ad-Ghoc appointments in terms of the order dated 07.12.2015 andwere not included in the number of 64,257. These three figuresaggregate to number 66,655. [Para 11 (h)] [1128-G-H]

6. Thus, the reasons for not appointing all the persons whowere part of list of 12,091 candidates were available on recordHfrom October 2016 onwards. [Para 11 (i)] [1129-A]

7. At no stage any grievance was made till the matter wasdisposed of in July 2017 which gave the status of permanencyto those who were appointed under various interim orderspassed by this Court. [Para 11 (j)] [1129-B]

8. The grievance was made for the first time almost a yearafter when these contempt petitions were filed. [Para 11 (k)][1129-B]

9. The order dated 22.07.2019 had, therefore, observedthat the Court could not disregard the fact that challenge hadbeen raised more than a year after the final Judgment. Eventhen, the State Government was called upon to indicate onaffidavit certain issues. The reason was obvious that if there was large scale infraction of interim orders passed by this Courtwhich merged in the final Judgment, the matter could still havebeen considered. [Para 11 (l)] [1129-C-D]

10. However, the response filed by the State Governmentnow indicates with clarity that no fresh appointments wereeffected after 2016 and no person other than those who satisfiedthe requirements laid down by this Court in its Order dated27.07.2015 as modified by further orders, was given anyappointment. The State Government has also placed on recordthe District wise break-up of all candidates appointed in variouscategories in all 75 Districts of the State. Nothing substantial waspointed out by any of the candidates or contempt petitioners.[Para 11 (m)] [1129-E]

INHERENT JURISDICTION/CONTEMPT PETITION(CIVIL) NOS. 1332-1360 of 2018 in Civil Appeal Nos. 4347-4375 of2014.

From the Judgment and Order dated 25.07.2017, 17.12.2014,25.02.2015, 07.12.2015, 24.02.2016, 24.08.2016, 17.11.2016 passed inCivil Appeal Nos. 4347-4375 of 2014

With

Contempt Petition (C) Nos. 1391-1419, 1673-1701, 1935-1963,1964-1992, 1993-2021, 2022-2050, 2051-2079, 2127-2155 of 2018, 20-48, 323-351, 704-732, 776-790 of 2019 in Civil Appeal Nos. 4347-4375of 2014, 741 of 2019 in Civil Appeal No. 9732 of 2017.

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AV. Shekhar, Siddharth Dave, Mahabir Singh, Ms. V. Mohana, AjitSinha, N.K. Mody, Dr. I.M. Quddusi, Pallav Shishodia, Sr. Advs.,Ravindra Sadanand Chingale, Fuzail Ahmad Ayyubi, Abbula Kalam,Abdul Qadir, Farrukh Rasheed, Pushkar Sharma, Ms. Goldi Tyagi,Abdul Gaffar, Satish Pandey, Sandeep Kr Satyam, Suyash Srivastava,Prashant Shukla, Ms. Nikita Capoor, Satyam Pandey, Satyajeet Kumar,BSusheel Tomar, Sanjeev Malhotra, Mukesh Verma, Pawan Kr. Shukla,Yash Pal Dhingra, S.K. Tiwang, Chandan Kr. V.S. Aggarwal, ShivamTripathi, Himanshu Upadhyay, R.C. Chingale, Pradeep Kr. Dwivedi,Sandeep Kr. Dwivedi, Dr. Vinod Kumar Tewari, Prabhoo Dayal Tiwari,Surya Kr., Manish Tiwari, Purvish Jitendra Malkan, Pradeep Kr. Yadav,CMs. Shanu Chauhan, Mohd. Asad Khan, Shashank Raj Singh, DanishZubair Khan, Shakeel Ahmed, Ms. Sadiya Shakeel, Siddhant Gupta,Chirag Sharma, Ms. Ananya Sharma, Siddharth Singh, Amit Pawan,Abhishek Amritanshu, Anand Nandan, Akshat Srivastava, Hassan ZubairWaris, Ms. Shivangi, Rohit Rajershi, Raj Kishore Choudhary, Manoj KMishra, Umesh Dubey, Ms. Jyoti Mishra, Sukumar,. Niranjan Sahu,DDhananjai Jain, Mrs. Swarupama Chaturvedi, Mukesh Kr., AshutoshMohan, Ms. Aparna Trivedi, Advs. for the appearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

E1. These Contempt Petitions inter alia seek enforcement ofinterim orders dated 17.12.2014, 25.2.2015 and 7.12.2015 and thejudgment and final order dated 25.7.2017[1] passed by this Court in CivilAppeal Nos.4347-4375 of 2014 and other connected matters.

2. The facts leading to the filling of aforesaid Civil Appeals wereFset out in the judgment and final order dated 25.07.2017 as under: - “4. In the wake of Eighty-Sixth Amendment to the Constitutionof India inserting Article 21A for providing free and compulsoryeducation to children of age of 6 to 14 years, the RTE Act wasenacted. The RTE Act inter alia lays down qualifications forGappointment and terms and conditions of service of teachers. TheCentral Government in exercise of its powers under Section 23of the Act, issued Notification dated 31[st] March, 2010 authorisingthe NCTE as the “academic authority” to lay down the minimumqualifications for a person to be eligible for appointment as a teacher. The NCTE thereafter issued Notification dated 23rdAugust, 2010 laying down qualifications for appointment ofteachers for elementary education. The NCTE also issuedguidelines dated 11[th] February, 2011 for conduct of TeachersEligibility Test (TET) and also providing for weightage to themarks in the said test for recruitment of teachers. The 1981 Rulesof the State were amended on 9[th] November, 2011 (the 12[th]Amendment) to bring the same in consonance with theNotifications dated 23[rd] August, 2010 and 11[th] February, 2011.Accordingly, the TET was held on 13[th] November, 2011 andresult thereof was declared on 25th November, 2011. Thereafteron 30[th] November, 2011, an advertisement was issued forappointment of ‘trainee teachers’ in primary schools. Thecandidates submitted their applications. However, the saidadvertisement was cancelled and a fresh advertisement dated7th December, 2012 was issued which came to be challengedand has been set aside by the impugned judgment. Thejustification given by the State of Uttar Pradesh for suchcancellation is that the result of TET was influenced by themoney consideration. On 31[st] December, 2011 the amount ofseveral lacs was seized with lists of candidates. FIR No. 675 of2011 was lodged. Residence of Director of Secondary Educationwas also searched leading to recovery of certain lists and cash.The State constituted a high powered committee headed by theChief Secretary on 10[th] April, 2012 which gave its report dated1[st] May, 2012. It was recommended that candidates foundinvolved in any irregularity/criminal activity in the TETexamination be prohibited from the selection. The StateGovernment took a decision dated 26[th] July, 2012 which wasfollowed by 15[th] Amendment to the 1981 rules on 31[st] August,2012 to the effect that instead of giving weightage to the TETmarks as per 12[th ]Amendment, the criteria of ‘quality point marks’as prevalent prior to 12[th] Amendment was adopted. Thisamendment was challenged on the ground that it rendered therules inconsistent with the NCTE guidelines referred to above.

5. Writ petitions were filed by the affected candidates againstthe cancellation of advertisement dated 30[th] November, 2011 andthe new advertisement dated 7[th] December, 2012 incorporatingthe criteria by way of 15[th] Amendment to the Rules which was AB

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[2019] 16 S.C.R.

Aat variance with the guidelines of the NCTE dated 11[th] February,2011, supra to the extent that weightage for marks in TET wasnot contemplated.

6. The Single Judge of the High Court dismissed the writ petitionsvide order dated 16[th] January, 2013[2]. Appeal against the saidBjudgment has been allowed by the Division Bench by theimpugned order. The Division Bench inter alia followed thejudgment dated 31[st] May, 2013 by three Judges (Full Bench) inShiv Kumar Sharma and Ors. v. State of U.P. and ors.[3] TheHigh Court held that the decision dated 26[th] July, 2012 of theState Government to change the criteria of selection by way ofC15[th] Amendment in the Rules to make TET as a minimumqualification (without giving weightage for the marks in the saidqualification as per NCTE guidelines) and cancelling theadvertisement dated 30[th] November, 2011 was not sustainableand that the NCTE guidelines were binding. Accordingly, the StateDwas directed to proceed and conclude the selection as peradvertisement dated 30[th] November, 2011.”

3. While the challenge was pending in this Court, certain interimorders were passed considering exigencies of the situation and the factthat large number of posts of Assistant Teachers were lying vacant.EThese interim orders permitted the State Authorities to makeappointments on certain parameters which were stated in the interimorders. Those orders were: - (A) By order dated 25.03.2014 it was directed: - F“By this interim order, we direct the State of Uttar Pradesh tofill up the vacancies of Assistant Teachers in the schools pursuantto the advertisement issued on 30.11.2011 as per the directionsissued by the Division Bench of Allahabad High Court in the caseof Shiv Kumar Pathak & Ors. [Special Appeal (Defective)No.237 of 2013] and connected matters as expeditiously asGpossible at any rate within 12 weeks’ time from today.

Further, the State in the letter of appointment that will be issuedto the successful candidates shall mention that their appointment 2 WP No.39674 of 2012 Akhilesh Tripathi v. State of U.P.H3 2013 (6) ADJ 310

is subject to the result of the civil appeals that are pending beforethis Court.”

(B) The order dated 17.12.2014 noted that despite aforesaiddirection, the State had not carried out the appointment process. It was,therefore, observed: - “After hearing the learned counsel for the parties at length onvarious occasions, we are inclined to modify the order passedon 25[th] March, 2014, and direct that the State Government shallappoint the candidates, whose names have not been weeded outin the malpractice and who have obtained/secured seventypercent marks in the Teacher Eligibility Test (TET). Thecandidates belonging to Scheduled Caste/Scheduled Tribe/OtherBackward Classes and the physically handicapped persons, shallbe appointed if they have obtained/secured sixty-five percentmarks. If there is any policy of the State Government coveringany other category for the purpose of reservation, it may be giveneffect to with the same percentage. It shall be mentioned in theappointment letter that their appointment shall be subject to theresult of these appeals and they shall not claim any equitybecause of the appointment, for it is issued on the basis of thedirection passed by this Court. ….

At this juncture, we must state that the advertisement was issuedto fill up 72,825 vacancies in the post of Assistant Teachers, whohave to impart education to students of Classes I to V. We havebeen apprised by the learned counsel for the respondents thatthere are three lacs posts lying vacant as on today. In thiscontext, we must recapitulate the objects and reasons fromthe Right of Children to Free and Compulsory Education Act,2009, ……

The State, as the guardian of all citizens and also with a furtherenhanced and accentuated responsibilities for the children, hasa sacrosanct obligation to see that the children are educated.Almost two thousand years back, Kautaliya had stated that theparents who do not send their children to have the teachings,deserve to be punished. Similar was the climate in England almostseven centuries back. Thus, the significance of education canbe well recognized. In such a situation, we cannot conceive thatthe posts would lie vacant, students go untaught and the schools A

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Alook like barren in a desert waiting for an oasis. The teacher shallserve the purpose of oasis in the field of education. Hence, theaforesaid directions.”

(C) The order dated 25.2.2015 took note of the affidavit filedon behalf of the State in which it was indicated that in respect of 72,825Bposts of Trainee Teachers, the State had initiated process of counselingand only those candidates who had secured 70% marks amongst GeneralCategory Candidates and 65% amongst the Reserved CategoryCandidates were permitted to participate in the counseling. It wasobserved by this Court:- C“As we find, as of today, 29174 vacancies are available to befilled up. If the persons belonging to Scheduled Casts/ScheduledTribes/Other Backward Classes have secured 65% marks andtheir number meets the requirement, the vacancies meant fortheir quota, shall be filled up by taking into consideration the saidpercentage. ……D

The State Government is directed to issue the public notice withinfour weeks from today requiring the selected candidates inrespect of 29174 vacancies to join and if any candidate fails tojoin within the stipulated period provided in the public notice, hewill forefeit his right of appointment in this selection. To clarify,Ewe may add that the public notice shall be published in widelycirculated newspapers and the candidates shall be given threeweeks time to join failing which the conditions prescribedhereinabove shall follow.”

(D) The order dated 02.11.2015 noted as under:- F

“It is submitted by Mr. Bhatia that keeping in view the order dated27.07.2015, as against 72825 posts advertised, 43,077 candidateshave been appointed, who, after completion of the training tillSeptember 2015, are working in praesenti. It is also submittedthat 15,058 candidates are undergoing training out of which 8,500Gshall be appearing in the examination on 16[th] and 17[th] November,2015 and the rest will be appearing in the examination aftercompletion of their training. In the result, around 14,640 postsstill remain vacant.”

(E) The order dated 07.12.2015 noted submissions of the learnedHcounsel for the State as recorded in the order dated 02.11.2015 and SANJAI KUMAR & ORS. v. DR. PRABHAT KUMAR ETC.[UDAY UMESH LALIT, J.]

the grievances of some of the candidates that though they had securedmore than 70% marks in TET examination in the General Category,they were not being considered. Following direction was thereafterpassed:- “At this juncture, we may state that Mr. Bhatia, learned AAGsubmitted that in pursuance of the direction of this Court on theearlier occasion and prior to that more than 75,000representations were received and after scanning the same, theState Government has found 12,091 persons eligible for beingappointed subject to verification of antecedents. Let the saidpersons be appointed subject to the said verification within sixweeks hence.”

4. The appeals were thereafter heard finally and by its judgmentand final order dated 25.07.2017[1], this Court held as under:- “16. There is no manner of doubt that the NCTE, acting as an‘academic authority’ under Section 23 of the RTE Act, under theNotification dated 31st March, 2010 issued by the CentralGovernment as well as under Sections 12 and 12A of the NCTEAct, was competent to issue Notifications dated 23[rd] August, 2010and 11[th] February, 2011. The State Government was underobligation to act as per the said notifications and not to give effectto any contrary rule. However, since NCTE itself has taken thestand that notification dated 11[th] February, 2011 with regard tothe weightage to be given to the marks obtained in TET is notmandatory which is also a possible interpretation, the view of theHigh Court in quashing the 15[th] Amendment to the 1981 Ruleshas to be interfered with. Accordingly, while we uphold the viewthat qualifications prescribed by the NCTE are binding,requirement of weightage to TET marks is not a mandatoryrequirement.”

However, considering the facts and circumstances andparticularly that various interim orders were passed from time to time,it was observed by this Court:- “17. As a result of above, in normal course the State would havebeen at liberty to proceed with the selection in terms ofadvertisement dated 7[th] December, 2012 in accordance with theamended rules by way of 15[th] amendment, in view of A

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developments which have taken place during pendency of theseappeals, the said advertisement cannot proceed and whileupholding the said advertisement, relief has to be moulded in thelight of developments that have taken place in the interregnum.

18. Vide interim order dated 25th March, 2014, this Court directedthe State of Uttar Pradesh to fill up the vacancies of AssistantTeachers in terms of the impugned judgment. Thereafter, on 17[th]December, 2014, the said order was modified and the State wasdirected to appoint candidates whose names were not involvedin malpractices in the TET test and who had obtained 70% marks(65% for SC, ST, OBC and physically handicapped or any othercategory covered by the Government policy for reservation).54,464 posts have already been filled up in compliance of theorders of this Court. The said appointments were subject to resultof these matters. It was also observed that if anyone withoutTET qualification is appointed his services will be terminated. Videorder dated 2[nd] November, 2015 it was noted that against 72,825posts which were advertised, 43,077 candidates had completedtraining and were working while 15,058 candidates wereundergoing training. Around 14,690 posts were vacant. It wasfurther observed that candidates who had the required percentageof marks in terms of order dated 27[th] July, 2015 were to file theirapplications and a Committee constituted for the said purposecould verify such percentage and if parity was found the samebenefit could be extended.

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19. We have been informed that 66,655 teachers have alreadybeen appointed in pursuance of the interim orders of this Court.Having regard to the entirety of circumstances, we are notinclined to disturb the same. We make it clear that the State isat liberty to fill up the remaining vacancies in accordance withlaw after issuing a fresh advertisement.”

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5. The judgment and final order thus noted that 66,655 teacherswere already appointed in pursuance of the interim orders passed bythis Court and having regard to the entirety of the circumstances thoseappointments were not to be disturbed. As regards the remainingvacancies, the State was given liberty to fill up those vacancies inHaccordance with law after issuing fresh advertisement.

6. Sometime in May, 2018 present Contempt Petitions were filedsubmitting inter alia that in terms of the interim orders issued by thisCourt which merged in the judgment and final order dated 25.07.2017[1],the candidates who had secured more than 70% marks in GeneralCategory and 65% marks in Reserved Category were required to beappointed; though the State made clear representation that the qualifiedpersons would be appointed, it did not appoint the Contempt Petitionersand as such the orders passed by this Court were violated. It wassubmitted that the State Government had incorrectly calculated thefigure of 66,655; that as recorded in the order dated 07.12.2015, therewas no objection to issue appointment orders in respect of 12,091candidates and yet the State had not issued appointment orders to theconcerned candidates, including Contempt Petitioners. It was furthersubmitted that the Contempt Petitioners were part of the list of 12,091candidates that was officially declared and yet they were completelysidelined by the State.

7. Notice was issued in the Contempt Petition on 20.08.2018 andthereafter in its order dated 04.10.2018, this Court observed:- “Mr. Siddharth Dave, learned advocate appearing for thepetitioner in Contempt Petition Nos.1391-1419 of 2018 submittedthat in terms of the order dated 07.12.2015 passed by this Courtat the interim stage, 12,091 candidates were found to be eligibleby the State Government. The submission made on behalf of theState was recorded thus:

“At this juncture, we may state that Mr. Bhatia, learned AAGsubmitted that in pursuance of the direction of this Court on theearlier occasion and prior to that more than 75,000representations were received and after scanning the same, theState Government has found 12,091 persons eligible for beingappointed subject to verification of antecedents. Let the saidpersons be appointed subject to the said verification within sixweeks hence.”

As per his submission, all those 12,091 candidates were to begiven appointments subject to verification of the antecedents. Mr.Dave then invited our attention to the reply affidavit filed by Dr.Prabhat Kumar, Additional Chief Secretary, Basic Education,Government of Uttar Pradesh, wherein it has been stated thatout of this body of 12,091 candidates, only 400 candidates were AB

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selected. According to Mr. Dave, nothing has been indicated inthe affidavit as to why and in what manner only 400 names couldbe selected.

Mr. Pallav Shishodia, learned senior counsel appearing for theState drew our attention to Annexure A-2 annexed to said replyaffidavit. According to him, after having found 12,091 candidatesto be eligible, the State had undertaken an exercise where goingby the choice given by the candidates at the stage of counselling,400 candidates came to be selected. According to him, all thepresent petitioners did not fulfil the cut-off as against Districtsthey had opted for and, therefore, they were not selected.

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Having gone through the record, we deem it appropriate to passthe following directions:

A. The entire record including the stages when names of400 candidates were selected from out of the entire bodyof 12,091 candidates be placed before the Court. Therecord of the counselling shall also be made availablefor perusal of the Court.

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Copies of the record need not be filed but the originalrecord shall be made available for perusal of the Court.

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B. A responsible officer who is aware of the intricacies ofthe matter may also be asked to remain present on thenext date of hearing.

List the matters on 27.11.2018.”

F8. The order dated 29.01.2019 passed by this Court noted thefact that a category wise chart was presented by the State and therespective parties were allowed to make submissions on the basis ofthat Chart. Next order dated 27.02.2019 noted the submissions of thelearned counsel for the Contempt Petitioners about certain irregularitiesin the Chart and the State was called upon to explain the position. TheGorder was to the following effect: - “Pursuant to last order dated 29.01.2019, a chart has been placedby learned counsel for the State of Uttar Pradesh for perusal ofthis Court. At the same time, case of a candidate namedAnuradha Gupta has been placed by way of illustration by Mr.HSiddharth Dave, learned counsel for the contempt petitioners.

According to the illustration Ms. Anuradha Gupta born on25.09.1980 had secured 101 marks in TET examination and hadalso participated in the counselling in respect of District Mirzapur.These facts are not disputed by the learned counsel for therespondent-State. The illustration indicates that 25 candidatesagainst category “female backward class - Arts” had alsosecured 101 marks and all of them are juniors in age to saidAnuradha Gupta.

It is also accepted by the respondent-State that if two candidatesare at the same level of marks, the governing criteria is to selectthat person who is senior in age. Going by the criteria, prima facie,Anuradha Gupta ought to have been selected but she was not.And all those 25 candidates who had secured same marks butwere juniors in age, were selected.

At the request of Ms. Swarupama Chaturvedi, learned counselfor the State, we adjourn the matter for three weeks so that allsuch cases can be comprehensively looked into and a report canbe presented before this Court.

In order to facilitate the exercise, we give liberty to all the learnedcounsel appearing for various candidates to give the details ofsuch candidates who had appeared for counselling in one or moredistricts, where someone with lesser number of marks or juniorin age (though had secured same marks) has been selected. Acopy of the chart given by Ms. Chaturvedi shall be handed overto Mr. Siddharth Dave from whom copies be obtained by all theother learned counsel. If there be any such illustrations, the detailsand data in that behalf shall be furnished to Ms. Chaturvedi,learned counsel for the State within two weeks from today. Nocase shall thereafter be entertained. The state authorities canthereafter check every such illustration and see whether thecandidates in question would actually fall in the zone of selectionor not. A comprehensive report shall thereafter be presentedbefore this Court.”

9. The responses were thereafter filed and the matter was heardon 22.07.2019. After recording submissions of the parties, the StateAuthorities were called upon to file an appropriate affidavit as under:- “Thus, according to the State Government, after considering75,000 odd representations it had found 12091 candidates to beeligible for appointment, subject to verification of antecedents.

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It appears that the process that was undertaken however did notresult in giving appointment orders to all 12091 candidates. Asstated in para 21 of the affidavit dated 01.10.2016, out of thisbody of 12091 candidates, only 391 candidates came to beappointed as the others did not take part in the selection processor had not opted for certain Districts or could not be selectedgoing by the cut off for the concerned Districts.

The affidavit thus stated that though opportunity was given toall 12091 candidates for counseling, the State could fill up only391 posts. The affidavit further stated that one more opportunitywas given by the State so that any candidate who was left outcould ventilate his grievance and the advertisement wasaccordingly published on 06.02.2016. The affidavit then statedthat a further step was undertaken by the State and anotheradvertisement was published on 08.02.2016 giving an opportunityto any candidate who was left out from being considered whenthe list of 12091 candidates was formalized. Para 25 of theaffidavit stated as under:

“25. That as per the advertisement dated 30.11.2011 there were72825 vacancies and till dated 64257 vacancies have been filledup and in addition to it, appointment letters are being issued inrespect of 1536 posts, as per the parameters fixed by this Hon’bleCourt and following the procedure prescribed in the recruitmentRules. The remaining vacancies belong to special horizontalreservation categories of handicapped persons, Dependants ofFreedom Fighters, ex-servicemen and also the scheduled casteand scheduled tribe candidates and these remaining vacanciescannot be filled up by the candidates of any other category.

It is pertinent to mention that 862 candidates who were givenad hoc appointment on the basis of order of this Hon’ble Courtdated 07.12.2015, are not included in the 64257 filled upvacancies and also the 1536 posts against which appointmentletters are being issued.”

The matter was thereafter heard in April, 2017 and final judgmentwas pronounced in 2017.

Mr. Pallav Sishodia, learned senior advocate appearing for theState submitted that the stand so taken in the affidavit dated 01.10.2016 was never controverted by any of the candidates norany grievance was projected on behalf of them. Mr. Sishodiasubmits that the grievance was raised more than a year afterdisposal of the matter in July, 2017.

Mr. Siddharth Dave, Mr. Ajit Sinha, Mr. V. Shekhar, Ms. V.Mohana and Mr. N.K. Mody, learned Senior Advocates appearingon behalf of some of the candidates submitted that the figurescoming forth from the aforesaid orders dated 2.11.2015 and7.12.2015 were completely at variance with the contents of theaffidavit. It was submitted that if 43777 candidates were alreadyappointed and 15058 were undergoing training as reflected in theorder dated 2.11.2015, it meant that as on 2.11.2015, 58,135candidates were already given appointments or were undergoingtraining. The vacancy situation projected on 2.11.2015 at 14640was thereafter crystalised to the number of 12091 who were foundto be eligible in all respects. If out of 12091 only 391 candidateswere appointed, it would not be possible for the State Governmentto indicate in the affidavit that 64257 persons were already givenappointment. In that situation, the number of candidates whowere appointed would be 58135 plus such number of candidatesas were drawn from the list of 12091 candidates.

Though we cannot disregard the fact that the challenge has beenraised more than a year after the final judgment, we call uponthe State Government to indicate on affidavit by a competentperson (the name of Ms. Renuka Kumar, Additional ChiefSecretary [Basic Education] Govt. of U.P., Lucknow, wassuggested by the learned counsel for the State) giving thefollowing details:

(a) District-wise break-up of the last candidates in variouscategories in the District who were given appointmentsby October, 2016?

(b) Whether any fresh appointments were effected afterOctober, 2016?

(c) Whether any person other than the one who satisfiedthe requirement laid down by this Court in its order dated27.7.2015 as modified by further orders of this Courtwas given appointment? If so, the name, age, and marks A

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obtained by every such candidate as against the cutoff.”

10. An affidavit of compliance has since then been filed by Ms.Renuka Kumar, Additional Chief Secretary, Department of BasicEducation, Government of U.P., responding to queries raised in the orderdated 22.07.2019 as under :- “(a) District-wise break-up of the last candidates in variouscategories in the District who were given appointment by October,2016?

As per the information furnished by the District authoritiesrelated to the said recruitment since the selections were madeto the vacancies allotted to the district class/category wise, theinformation was provided on a prescribed format by each districtshowing the breakup of the last selected candidates in variouscategories in the district who were given appointments as aTrainee Teacher. As reported by the district authorities 64257appointments were made before October, 2016 and 1536selections/ appointments were under process to be completedwhich is mentioned in the affidavit filed on 01 Oct, 2016. Inaddition to said selections, in compliance of the Hon’ble SupremeCourt’s order dated 07.12.2015, 862 candidates were selectedon ad-hoc basis against the list of 1100 candidates before 01 Oct,2016. District wise breakup of last candidate in various categoryin 75 district, as furnished by the district authorities is annexedhere with as Annexure No.A-1.

(b) whether any fresh appointments were effected after October,2016?

As reported by the district level authorities, no fresh selection/appointment was made after October 2016 except the candidatesagainst 1536 posts who were under process and reported in theaffidavit dated 01-10-2016.

(c) Whether any person other than the one who satisfied therequirement laid down by this Court in its order dated 27.7.2015as modified by further orders of this Court was givenappointment? If so, the name, age, and marks obtained by everysuch candidates as against the cut off.

As reported by the district level authorities related to the saidrecruitment no person other than the ones who satisfied therequirement laid down by this Court in its order dated 27.7.2015as modified by further orders of this Court was givenappointment. It is clarified here that in the Hon’ble SupremeCourt’s order dated 27.07.2015 the criterion/parameters fixed bythe Hon’ble Supreme Court in earlier orders are mentioned. The862 ad-hoc selections against the 1100 candidates list were madein compliance of Hon’ble Supreme Court’s order dated07.12.2015. It is pertinent to mention here that some of thecandidate selected among 862 candidates on ad-hoc basis do notfulfill the criterion/parameters fixed by Hon’ble Supreme courtin its order dated 27.07.2015 and earlier orders. It is to besubmitted that the details of these candidates were given in theaffidavit of 1.10.2016 at paras 9-14 therefore which are not beingrepeated for the sake of brevity. In any case these deviationscannot be presented as precedent nor any claim was ever madeto this effect. However, for ready reference the details of these862 candidates are annexed hereto as Annexure A-2.”

11. Following facts, therefore, emerge from the record:-

11. Following facts, therefore, emerge from the record:- (a) Large number of vacancies were lying unfilled while theCivil Appeals were pending in this Court. Taking intoaccount the interest of the student community thoseappointments were required to be made. A principlewas, therefore adopted by order dated 17.12.2014 thatthose who had obtained more than 70% marks in TETExamination from the general category and those whohad obtained more than 65% marks from the reservedcategories be given appointments. The idea was clearthat such candidates would normally stand selected inthe ultimate process of selection. It was, however, madeclear that such appointments would not entitle theselected candidates to raise any claim in equity.

(b) In the selection process undertaken thereafter, initially29,174 candidates were selected and a direction wasissued on 25.02.2015 to fill up those posts.

(c) The next order dated 02.11.2015 recorded that as against72,825 posts which were advertised, 43,077 candidates A

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were appointed, who after completion of training wereactually working while 15,058 candidates wereundergoing training, leaving about 14,640 posts stillvacant.

(d) The exercise of selecting those who had securedminimum marks in terms of criteria devised by orderdated 17.12.2014 also resulted in finding 12,091 personseligible subject to verification of antecedents, as wasrecorded in the order dated 07.12.2015

(e) The list of these 12091 candidates was published and itis a matter of record that the names of the contemptpetitioners were part of this list.

(f) According to para 21 of the Affidavit dated 01.10.2016(which has been referred to in the order dated22.07.2019) out of these 12091 candidates, only 391candidates could be appointed as the others either didnot take part in the selection process or had not optedfor certain Districts or could not be selected going bythe cut-off for the concerned District. This developmenthad happened way back in October 2016 and theaffidavit was on record since then.

(g) The State thereafter published another advertisement on06.02.2016 so that if any candidate was left out, hiscandidature could be considered. Steps were thereaftertaken and another advertisement was published on08.02.2016. Para 25 of the Affidavit dated 01.10.2016as quoted in the order dated 22.07.2019, dealt with thisissue in clear terms and was thus part of the record.

(h) Aforesaid para 25 of the Affidavit thus made it clearthat as on the date when the affidavit was filed, 64,257vacancies were filled up and 1,536 appointment letterswere being issued in addition. It was also stated that862 candidates were given ad-hoc appointments in termsof the order dated 07.12.2015 and were not included inthe number of 64,257. These three figures aggregateto number 66,655.

(i) Thus, the reasons for not appointing all the persons whowere part of list of 12,091 candidates were available onrecord from October 2016 onwards.

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(j) At no stage any grievance was made till the matter wasdisposed of in July 2017 which gave the status ofpermanency to those who were appointed under variousBinterim orders passed by this Court.

(k) The grievance was made for the first time almost a yearafter when these contempt petitions were filed.

(l) The order dated 22.07.2019 had, therefore, observed thatthe Court could not disregard the fact that challenge hadbeen raised more than a year after the final Judgment.Even then, the State Government was called upon toindicate on affidavit certain issues. The reason wasobvious that if there was large scale infraction of interimorders passed by this Court which merged in the finalJudgment, the matter could still have been considered.

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(m) However, the response filed by the State Governmentnow indicates with clarity that no fresh appointmentswere effected after 2016 and no person other than thosewho satisfied the requirements laid down by this Courtin its Order dated 27.07.2015 as modified by furtherorders, was given any appointment. The StateGovernment has also placed on record the District wisebreak-up of all candidates appointed in variouscategories in all 75 Districts of the State.

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(n) Even after the filing of the response by the State, asindicated in para 10 hereinabove, nothing substantial coldbe pointed out by any of the candidates or contemptpetitioners.

12. In the circumstances, we do not see anything wrong in theprocess undertaken by the State Government in pursuance of variousinterim orders passed by this Court and also in pursuance of theJudgment and final order dated 25.07.2017[1]. The fact that out of 12,091candidates only few could be selected and the reasons for non-selectionof rest of the candidates, were part of the record since October 2016.In any case, response filed by the State is also clear. In the totality of G

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Athe circumstances, in our view, there has not been any violation of anyof the orders passed by this Court as alleged in the contempt petitionsor otherwise.

13. We, therefore, see no reason to interfere in these contemptpetitions which are directed to be closed.

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Ankit Gyan

Contempt petitions closed.

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