SUSHIL KUMAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioners for quashing the order dated 2.1.2006 whereby the representation of the petitioners for sending him on training of Special B.T.C. Training Course (1998) has been rejected by the respondent No. 2. The brief facts in a nutshell are as follows: The respondent No. 2 made an advertisement on 8.3.1998 inviting applications from eligible and qualified candidates for filling up the post of Assistant Teachers in the Primary Schools through Special B.T.C. Training Course. The petitioners have applied for the same within time enclosing all necessary documents. In the meantime since the petitioner had already appeared in the back paper examinations of B.Ed, for improving their marks in the theory papers and the result of which was declared and the petitioner secured better marks therein, therefore, they made request through representation dated 28.8.1998 and 2.9.1998 to the respondent No. 2 to entertain the new mark-sheet for the purposes of calculating and preparation of merit list for the appointment in Special B.T.C. Training. Though the new mark-sheets of the petitioners were duly received in the office of respondent No. 2 but they did not consider them for the purposes of consideration of merit list and declared the result of Special B.T.C. Training Course in March, 1999 in which the petitioners did not find the name in the select list, although the merit of the petitioner is much above the last selected candidate. The merit of last selected candidate was 52.99 and whereas the merit of the petitioner Nos. 1 and 2 were 56.71 and 55.41 respectively. After the declaration of the result petitioners made several representations to the authority concerned with a request to consider and entertain the revised mark-sheet submitted by the petitioner and to permit the petitioner to undergo training of Special B.T.C. Course but the authority concerned did not pay any attention to the request of the petitioner. In the meantime this Hon'ble Court delivered a judgment and order dated 22.5.2003 involving similar set of facts. THIS Court in Writ Petition No. 39289 of 2000, Kamlesh Kumar Yadav v. Director, Rajya Shaikshik Anusandhan Evam Prashikshan Parishad, U.P., Lucknow and others passed an order commanding the respondents to consider the revised mark-sheet issued by the University for calculating the merit for the appointment in Special B.T.C. Training Course (Annexure 2 to the writ petition). The petitioners subsequent thereto made a fresh representation dated 23.8.2004 annexing the copy of the said judgment passed in Writ Petition No. 39289 of 2000 requesting the authority to permit the petitioner to undergo training of Special B.T.C. Course in the light of the judgment and order dated 23.8.2004 in the case of Kamlesh Kumar Yadav v. Director, Rajya Shaikshik Anusandhan Evam Prashikshan Parishad, U.P., Lucknow and others (supra). It is further stated in the writ petition that on the basis of judgment dated 22.5.2003 respondents considered the claim of Kamlesh Kumar Yadav and send him for training. When no heed or any fresh order in favour of petitioner was passed, the petitioners filed Writ Petition No. 3911 of 2004 before this Court and this Court issued a direction on 16.11.2004 directing the respondents to pass a fresh order in the matter of petitioners considering the order passed in Writ Petition No. 39289 of 2000 Kamlesh Kumar Yadav v. Director, Rajya Shaikshik Anusandhan Evam Prashikshan Parishad, U.P., Lucknow and others (supra). The said order dated 16.11.2004 passed by this Court was submitted by the petitioners alongwith their representations to the concerned authority and in pursuance of the same respondent No. 2 issued a letter for councilling before respondent No. 2 on 23.12.2004. Respondent No. 2 rejected the claim of the petitioners by order dated 2.1.2006. Hence the present writ petition.

(2.) THIS Court by order dated 24.1.2006 inter-alia passed the following orders: "Heard Sri Sidheshwari Prasad learned Senior Advocate assisted by Sri M. P. Singh, Advocate for the petitioner and the learned Standing Counsel for the respondents. The order dated 2.1.2006 has been assailed by the petitioner on the ground that the findings recorded, proceed on erroneous assumption of facts and law. Learned counsel for the petitioner has pointed out that the judgment in the case of Kamlesh Yadav has been wrongly construed by the respondents while proceeding to decide the dispute inasmuch as the mark-sheet which had been issued to Kamlesh Yadav was on 25.8.1998 and not prior to 30.3.98 as recited in the impugned order. The second discrepancy pointed out is with regard to the findings recorded in para 9 of the impugned order pertaining to the date of the issuance of mark-sheet of the petitioner No. 2 Santosh Kumar Singh. The said mark-sheet which has been produced in original indicates that it was issued on 22.9.2001 and not on 22.9.2004 as recorded in the impugned order. In these circumstances, since the order prima facie proceeds on an incorrect assumption of fact, therefore, the operation of the order dated 2.1.2006 is stayed until further orders with a direction to the respondent No. 2 to consider the claim of the petitioner and pass appropriate order as expeditiously as possible preferably within three weeks of the date of presentation of a certified copy of this order before the said respondent. While passing the order, the said respondent shall also decide the dispute on the basis of marks obtained by the petitioner on the basis of the results after the petitioner had appeared in the improvement examination. A certified copy of this order shall be produced by the petitioner before the respondent No. 2 within a week. Learned Standing Counsel shall file counter affidavit within three weeks. A week thereafter is granted for filing the rejoinder affidavit. List after expiry of the aforesaid period."

(3.) LEARNED Standing counsel on the other hand has supported the impugned order and tried to distinguish the case of the petitioners with that of Kamlesh Kumar Yadav.