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2003 DIGILAW 222 (UTT)

Rekha Dangwal v. State of Uttaranchal

2003-10-20

RAJESH TANDON

body2003
JUDGMENT This writ petition has been filed praying for a writ in the nature of certiorari quashing the advertisement dated 23.7.2003 issued by the respondent no. 4 for the appointment of Shiksha Mitra and the selection process drawn in pursuance thereof. 2. Briefly stated the facts giving rise to the present writ petition are that in pursuance of the Government order an advertisement was issued on 18.11.2000 and the petitioner applied for the post of Shiksha Mitra by means of an application dated 20.11.2000. The Gram Siksha Samiti passed a resolution to appoint the petitioner as Shiksha Mitra and appointment letter was issued in favour of the petitioner on 27.11.2000. Initially the petitioner was appointed as Shiksha Mitra for the session of 2000-2001, however after being satisfied from her performance her appointment was further approved for the session 2001-2002 and for session 2002-2003. The petitioner was permitted to continue after May 2003 till now. The Gram Shiksha Samiti issued an advertisement on 23.07.2003 inviting the applications for appointment to the post of Shiksha Mitra and, therefore, the petitioner, has filed the present writ petition. 3. I have heard the learned counsel for the parties at great length. Both the parties agreed that the matter may be finally disposed of at this stage. 4. The petitioner has brought to the notice of the court, the notification dated 1.7.2000 the scheme which is known as 'Shiksha Mitra'. Preamble of the notification provides that in order to give elementary education in the villages as well as in order to cater requirement of adult education the scheme has been introduced through Gram Panchayat known as Shiksha Mitra. It has been emphasized in clause (1) of said notification that the scheme shall be formulated by the Director Education (Basic). Clause 5 of the aforesaid notification provides duration of Shiksha Mitra. It provides that the duration of Shiksha Mitra shall come to an end in the month of May of every year. 5. Clause 7 also provides training for Shiksha-Mitra. It also contains the rules of appointment of Shiksh Mitra and also for the renewal of the appointment of the term of Shiksha Mitra. The form of contract is also given along with the notification. 6. Vide notification dated 5.7.2003 Additional Director, Uttaranchal has enhanced remuneration of the Shiksha Mitra from Rs. 2750/- for Rs. 3,000/-. It also contains the rules of appointment of Shiksh Mitra and also for the renewal of the appointment of the term of Shiksha Mitra. The form of contract is also given along with the notification. 6. Vide notification dated 5.7.2003 Additional Director, Uttaranchal has enhanced remuneration of the Shiksha Mitra from Rs. 2750/- for Rs. 3,000/-. In pursuance of advertisement dated 23.07.2003 one Sri Dileep Kumar has applied for appointment as Shiksha Mitra but he has not yet been appointed as has stated by both the parties. On 13.08.2003 Basic Shiksha Adhikari, Tehri Garhwal has recommended the case of the petitioner stating therein that the petitioner can be reappointed only if her work is found satisfactory. Further on 27.08.2003 B.S.A. has sent a reminder for compliance of the order dated 13.08.2003. 7. On 15.9.2003 B.S.A. has further recommended that fresh appointment may not take place unless some order is passed in respect of the petitioner and her work is not found satisfactory. The learned counsel for the petitioner has pointed out that there is nothing on the record to suggest that Shiksha Samiti has passed any order continuing or discontinuing the term of the petitioner. As will appear from the record that B.S.A. has already recommended for the appointment of petitioner as Shiksha Mitra vide letters dated 13.8.2003, 27.8.2003 and 15.9.2003 but no action has been taken on the recommendation of B.S.A. The B.S.A. has recommended for continuity of the term of the petitioner as her work was found satisfactory and as such fresh advertisement cannot be issued. The petitioner has stated that she is still working on the said post. 8. The scheme of Shiksha Mitra has been formulated for the welfare of villagers, therefore, the appointment cannot be left on the whims and desire of the appointing authority. In the present case there is no order passed by the selection committee approving or disapproving continuance of the petitioner so as to appoint another person by a fresh advertisement. 9. The scheme of Shiksha Mitra known as PRADESH ME PRATHAMIK SHIKSHA has been framed by virtue of Article 21A of the Constitution of India as amended by 86 Amendment Act of 2002. It reads as under: '21A. 9. The scheme of Shiksha Mitra known as PRADESH ME PRATHAMIK SHIKSHA has been framed by virtue of Article 21A of the Constitution of India as amended by 86 Amendment Act of 2002. It reads as under: '21A. Right to education- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.' 10. Similarly, provision for right to work and right to education has been made a constitutional mandate by virtue of Article 41, 45 and 51A (k) of the Constitution of India. These Articles are quoted below: Art. 41. The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Art. 45. The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. 11. Article 45 has further been substituted by 86 amendment of 2002 by making provision for compulsory education for all the children until they complete the age of 14 years. The constitutional amendment of Article 45 is quoted below: "45. Provision for early childhood care and education to children below the age of six years- The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. " 12. By way of amendment in Article 51A a duty has been imposed upon the citizens to provide opportunities to the children. It reads as under: 51A. (k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward, between the age of six and fourteen years. 13. The scheme of education to the children has also been emphasized in the case of Unni Krishnan J.P. and others vs. State of Andhra Pradesh and others, (1993) 1 SCC 645. The findings of the Apex Court are quoted below: "Now coming to Mohini Jain case {(Mohini Jain vs. State of Karnataka (1992) 3 SCC 666} it was observed at pages 679-80 (para 12). The findings of the Apex Court are quoted below: "Now coming to Mohini Jain case {(Mohini Jain vs. State of Karnataka (1992) 3 SCC 666} it was observed at pages 679-80 (para 12). " 'Right to life' is the compendious expression for all those rights which the courts must endorse because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and tl1e dignity to an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens. " Education is enlightenment. It is the one h/that lends dignity to a man as was rightly observed by Gajendragadkar J. (as he then was) in University of Delhi vs. Ram Nath {(1964) 2 SCR 703, 710 : AIR 1963 SC 1S73} "Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development. " If life is so interpreted as to bring within its right to education, it has to be interpreted in the light to directive principles. This Court has uniformly taken the view that harmonious interpretation of the fundamental rights vis-a-vis the directive principles must be adopted. We will now refer to some of the important cases. " 14. The judgment of the Apex Court in the case of Unni Krishnan (supra) has further been up held in the case of T.M.A. Pai Foundation vs. State of Karnataka and others (2002) 8 SCC 481. The observations of the Apex Court are quoted below: "It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it was required to be done, according to the rules or instructions. There have been case of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the Government or the university are clearly loaded against the management. There have been case of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the Government or the university are clearly loaded against the management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the initiation of the disciplinary proceedings, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the management in the event of some punishment being imposed, it was submitted that there should be no role for the Government or the university to play in relation to the imposition of any penalty on the employee. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed The teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against the appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not In the interest of general education. Disputes between the management and the staff of educational institution must be decided speedily, and without the excessive incurring of costs. It would therefore, be appropriate that an aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State- the object being that the teacher should not suffer thought the substantial costs that arise because of the location of the Tribunal; if the tribunals are limited in number, they can hold circuit/camp sitting in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service. " 15. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service. " 15. Taking into consideration the constitutional mandate as contained under Article 21A, 41, 45 and 51A (k) the State of Uttaranchal has to fix the criteria for appointment of ‘Shiksha Mitra' for carrying out the intention of the constitutional amendment for the education of children. Guidelines have also to be provided for appointment of 'Shiksha Mitra." 16. As held by the Apex Court in the case of Ram Ashrey Singh & another vs. Ram Bux Singh and another AIR 2003 SC 1576 that right to reason is an indispensable part of a sound judicial system. The observations of the Apex Court are quoted below: "The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. (see Susannah Sharp vs. Wakefield (1891) AC 173,179). " 17. Relying upon the case of Padanasam Labour Union vs. Madura Coats (1995) 1 SCC 501 the Apex Court in the case Balram Kumawat vs. Union of India and others, 2003 AIR SCW 4658 that every higher authority should be conscious to his duties and obligations. The Apex Court has held as under: "In Padanasam Labour Union vs. Madura Coats (1995) 1 SCC 501) whereupon Mr. Parikh has placed reliance, this Court held that while a power has been conferred upon higher authority, a presumption can be raised that he would be conscious of its duties and obligations so would act promptly and reasonably. " 18. The authorities of Education Department of the State as well as the parents or guardians are bound to provide opportunities for education to the children according to the constitutional mandate. " 18. The authorities of Education Department of the State as well as the parents or guardians are bound to provide opportunities for education to the children according to the constitutional mandate. They are also bound to perform their duties as has been rightly stated in 8hagwat Geeta Chapter 18 (48) to the following effect: "Therefore, Arjuna, one should not abandon one's innate duty, even though it may be tainted with blemish; for even as fire is enveloped in smoke, all undertakings are clouded with demerit." 19. As rightly said by Smani Vivekanand in the following words: A man must not be judged by the nature of his duties but the manner in which he does them. 20. In the light of aforesaid facts and Circumstances the Director of Education, Uttaranchal is directed to consider the Scheme afresh and codify the Scheme in accordance with the Constitutional mandate as Contained under Articles 21A, 41, 45 and 51A (k) of the Constitution of India. 21. So far as the case of the petitioner is concerned the Director of Education, Uttaranchal shall decide it afresh in the light of recommendation made by the B.S.A. Tehri Garhwal. The Director Education shall take decision in regard to appointment of 'Shiksha Mitra' and shall pass speaking order in the light of Government order dated 1.7.2000 after hearing the Petitioner. 22. The order appointing any fresh person, as 'Shiksha Mitra' shall remain in abeyance till speaking order is passed on the representation of the petitioner. Regular honorarium shall also be paid to the Petitioner till the period she Continues to work as 'Shiksha Mitra'. 23. Consequently upon the aforesaid observations, the Writ petition is allowed. There will be no order as to costs. 24. Let a copy of this judgment be sent to the Chief Secretary, Uttaranchal for taking necessary steps in the light of observations made in the judgment.