HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1397 of 2004 (S/S) 1- Mohd. Shaleem S/o Sri Asraf Ali R/o Village Shankarpur, Rampur Kala, Rampur District Dehradun 2- Smt. Shaheen Khanam W/o Mohd. Anwar Zia R/o Village Kulhal Dehradun 3- Muzibur Rehman S/o Zahoor Hasan R/o Haripur Road Herbertpur Dehradun 4- Mohd. Anwarool Haq S/o Sri Noor Ahmad R/o Village Dhaki P.O. Sahaspur District Dehradun …………Petitioners Versus 1- State of Uttaranchal through Secretary Basic Education Dehradun 2- Director Basic Education State of Uttaranchal Dehradun 3- Upper Zila Shiksha Adhikari/District Basic Shiksha Officer, Dehradun 4- Nasra Praveen W/o not known R/o 1/59 Tagore Colony Chukhwala Dehradun 5- Mohd. Yunus S/o not known R/o Chor Khala Masjid Ballupur Dehradun 6- Ram Kumar S/o not known R/o Saharanpur Road Harbartpur Dehradun 7- Sumant Singh S/o not known R/o Village Langha Dehradun 8- Firoz Khan S/o not known R/o Village Ambadi P.O., Amadi Dehradun ………Respondents M.C. Pant Advocate for the Petitioners Standing Counsel for the State Dated: 8.3.2006 Hon’ble Rajesh Tandon J. Heard Counsel for the parties. 2 By the present petition the petitioners have prayed for a writ of certiorari quashing the impugned notification dated 23- 11-2004 and its subsequent interview and appointment made. Brief stated according to the petitioners they are having the following qualifications and fully eligible for the appointment of Urdu Teacher.- S.No. Name and Education Qualification Address 1- Muzibur Rehman S/o Shri Zahoor Hassan R/o Haripur Road, Herbertpur, Dehradun. High School 1990 Intermediate 1997 Graduation 2002 Adib E Kamil 1999 Moallim-E-Urdu 2000 2- Smt. Shaheen Khanam W/o Sh. Mohd. Anwar Zia R/o Village Kulhal, Dehradun Graduation (Urdu) Certificate of Urdu Teacherto two years Course (U.T.C.) 3- Mohd. Anwar Haq S/o Shri Noor Ahmad, R/o Village Dhaki, P.O. Sahaspur, District Dehradun High School 1987 Intermediate 1991 B.Com. 1994 Adib E- Kamil 1996 Moallim-E-Urdu 1997 4. Mohd. Shaleem S/o Shri Asraf Ali , R/o Village Shankiarpur Rampur Kala, Rampur District Dehradun Jamia Dinyat Urdu Devban 1985 Adeed-E-Kamil 1994 Moallim-E-Urdu 1996 The petitioner no. 2 is having the qualification of Urdu teacher course, which is equivalent to B.T.C. 3 The respondent no. 3 have notified the vacancy of Urdu Teachers and mentioned that the total number of 15 vacancies are to be filled up from the original residents of District Dehradun and the qualification in this advertisement was mentioned as under: A graduate degree from any University of India duly constituted under law or any equivalent examination along with one subject of Urdu as recognized by the State Government or Basic Teacher certificate from Lucknow, Agra, Mawana and Sankal Doda (Varansi) for Urdu Teacher and Moallim-E-Urdu from Urdu Aligarh prior to 11-8-1997. The petitioners have filed the present writ petition challenging the aforesaid advertisement. The following interim order has been passed by this Court on 29.4.2005: “In the mean time it is provided that in case the petitioners are qualified to be appointed as Urdu Teachers, the respondents shall consider the case of the petitioners for their appointments.” Counsel for the petitioner has submitted that there was no mention in the advertisement that how many posts are reserved for reserved category candidates. According to the written test was conducted on 7-11-2004 and the results should have been declared on the same date but in the instant case the results were shown to be declared on the next date. However, there was no declaration of written test. According to the petitioners, the respondents are trying to conceal the record which is very much relevant because the failed candidates in the written test have also been appointed. The petitioners have further submitted that four persons who were Intermediate (Urdu) and some of the candidates who 4 were Intermediate with Moallim –E-E- Urdu and some other persons who possesses certificate of Adib-E-Kamil, which is one year correspondence course in Urdu were considered, such qualification cannot be treated as graduation in Urdu. The petitioners have given example of the Vidnesh Kumar and Saman Singh Chauhan, who are only intermediate in Urdu and not graduate in Urdu. On the other hand Smt. Nasera Praveen and Suhail Akhtra who are not even the graduates and only having qualification of Adib-E-Kamil and Moallim-E- Kamil however, they were given appointment. The petitioner have further alleged that expertise Sh. Jahir Ahmad Ansari could not check the copy due to “Roza” but it is also mentioned here that on 8-11-2004 there was also “Roza” then if the copies were checked on 8-11-2004 then why the result was not served up to 22-11-2004 and the all selected candidate were called for interview on 3-12-2004 while the respondents are mentioning in their counter affidavit that the interview was held on 8-11-2004 which is totally false. It is also useful to mention here that in service regulation 1981 it was provided that only eligible candidates should be called for written test but in the instant case ineligible candidates have also called while the eligible candidates were ignored. It is pertinent to mention here that this Court while granting the interim order in favour of the petitioners has directed to consider the case of the petitioners for appointment if they are eligible and the respondents no. 3 vide letter dated 12-5-2005 sought directions to the Joint Director about the sanctioned post of Assistant Teacher (Urdu) and vide order dated 18-5-2005 replied that total 20 posts are sanctioned. 5 It is also submitted that some of the candidates who were selected and are not the residents of Uttaranchal and have also been appointed. Moreover, while making the appointment the 6th and 8th amendment of 1994 and 1998 was completely ignored which provides that for the eligibility for Assistant Teacher (Urdu) graduate degree is must. The petitioners have submitted that they are fully eligible and qualified for the post in question and also have a belief that they have succeeded in written test but for ulterior motives their candidature was not considered despite of the court order. Hence, the act of the respondents is arbitrary. I have heard both the parties and perused the record. The petitioners raised a serious controversy, which involves a factual dispute also. The learned Counsel for the petitioners has also pointed out that the State of Uttaranchal vide Government order dated 24-08-2005 further clarified the earlier government order dated 13-9-1994 and directed that if the trained teachers are not available then the persons possessing the Moallim-E-Urdu qualification after 1997 may be considered for appointment of Assistant Teacher Urdu in untrained scale. In compliance to the court order the Upper Basic Shiksha Adhikari appeared in person before the court the submitted the records relating to the selection of Urdu Teachers. The record was kept in a sealed over. The petitioners have submitted that the eligibility criteria prescribed in the advertisement was completely ignored during the process of selection. It is pertinent toe mention that in the advertisement mandatory qualification was graduate degree but while making the advertisement appointment was given to the non graduates. 6 Hence, so many candidates who were eligible were deprived from the selection. Accordingly to the submissions of parties the candidates having Moallim-E-Urdu were treated as trained but the appointments were given to the untrained candidates. It is true that written test was held on 7-11-2004 but the result of the test was not declared on that day. The respondents have given explanation that the person who was the expert member was on “Roza” This contention of the respondents cannot be accepted because that person was not on leave. The procedure for granting quality point marks has also been assailed by the petitioners and it has been submitted that the quality point marks were given against the prescribed Rules as well as the G.O. no. 006 of 27-1-04 and paragraph no. 3 of the Amendment Rules 1988. The quality points marks prescribed for Urdu Teacher is Qualification 10+2+3+ Training Course Moallim Urdu, while the procedure adopted by the respondents to grant the quality point is 10+2+nil and one year Urdu (Adib-E-Kamil + Moallim E Urdu). Suffice is to say that the Adib-E-Kamil is merely a certificate passing Urdu as one subject and cannot be treated or equated with Degree course. The merit list was prepared amongst the successful candidates in accordance to their seniority of passing training degree Moallim-E-Urdu. All 20 candidates who were called for interview do not possess Moallim-E-Urdu. Secondly against 15 vacancies to call 20 candidates is also against the provisions of G.O. dated 21-7-95, because it provides that only one candidate will be called against a vacancy for interview in a district 7 According to the petitioner there is no G.O. to grant relaxation in age while in this case age limit was extended to 50 years to give undue benefit to selection was made as per rules or not and thus by means of this instant petition they are knocking the doors of this Hon’ble Court for providing them justice and the maintain the transparency in the selection which has not been shown in the impugned selection. On 29-4-05 this court has passed order directing to the respondents to consider the candidature of the petitioner. Thereafter a counter affidavit is filed on behalf of the respondents no. 2&3 in which it was stated that the written examination of the candidates were required to obtained minimum of 50% marks of the total marks of the written examination. The candidates who could not obtained 50% marks in the written examination were not considered for interview. It is further stated that interview part of the selection was limited only for verifying the original certificate/testimonials of the candidates and no other oral interview was required to be taken from the candidates nor any marks was allotted for that purpose. It was further stated that the petitioners could not find place in merit list as prepared for the aforesaid purpose up to the number 20 as such their case could not be considered for giving appointment and the present writ petition preferred by them is misconceived. It is further stated that all the candidates were required to obtain 50% minimum marks out of the total in the written examination who were senior according to passing out their training. Thus even if a candidate obtains higher marks priority 8 has to be been given to the candidates who has passed training in previous years. The respondents relied on a government order dated 13- 9-94 which is filed by them as Annexure CA-1 The G.O. provides that if the trained candidates are not available in a particular recruitment year in that event the candidates who have Urdu subject in Intermediate and graduation level can be considered for the candidature of appointment as Assistant Teacher Urdu in basic primary schools. It was also contended by the respondents that all the candidates who have passed Moallim E Urdu prior to 11-8-97 were considered and the merit list was prepared a written test to prove his excellence in Urdu Language will be held on 17-10-04 and the interview shall be hold on the same day. Thereafter a corrigendum published on 11-10-04 by which the earlier vacancy were amended and the age relaxation was given to those candidates who could not get appointment as Urdu Teachers in the schools of Basic Education Parishad after having passed the requisite training but due to non availability of vacancies they could not be provided posting On 7-11-04 when the petitioners appeared in written test. After conducting the written test their documents were examined but no interview was called on that date. The procedure adopted by the respondents for examining the documents were totally strange because the eligibility criteria of a candidate has to be examined before conducting any written examination. Thereafter on 23-11-04 another notification was published in daily Amar Ujala of dated 23-11-04 by which the respondent no.3 declared that 20 candidates whose Roll Nos. 9 are mentioned in the notification were selected and the interview will be held on 3-12-04. As per notification the candidates who possess the degree of Moallim E Urdu prior to 11-8-97 which is equivalent to B.T.C. but in the written examination both the trained or untrained candidates up to 2004 appeared and some of the candidates who did not possess even the graduate degree are selected for interview, which transpires that the selection procedure was not fair and according to rules. In view of above, and as per the agreement of both the parties, it is proper and expedient that the Secretary Education Uttaranchal will enquire into the entire selection process after examining the record. The interim order passed on 29-4-2005 will continue to operate and three posts shall be kept reserved for the petitioners. However, it is made clear that the entire appointments made in pursuant to the advertisement shall be subject matter of the final decision taken by the Secretary Education. The record kept under sealed cover be sent to the Secretary Education for compliance of the order immediately. The Secretary Education will also give opportunity for hearing to the petitioners while enquiring into the matter. It is being made clear that independent enquiry shall be made by the Secretary. The respondents thereafter shall consider and pass appropriate order regarding the appointment of the petitioners against the vacant posts. Subject to the observations made above, petition is disposed off. No order as to cost. Rajesh Tandon J. Dated: 8.3.2006 *Dhyani