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Allahabad High Court · body

2004 DIGILAW 794 (ALL)

Shailendra Kumar Misra v. State Of U. P.

2004-04-09

SUNIL AMBWANI

body2004
JUDGMENT : Sunil Ambwani, J. I have heard Sri Ashok Khare, senior advocate assisted by Sri V.D. Chauhan and Sri Subodh Kumar for Petitioners and Sri K. Shahi, Sri Jitendra Ojha, Sri P.D. Tripathi, Sri. R.K. Tripathi and Sri Ravi Shanker Prasad as well as Sri K.K. Rai for Respondent. 2. The Petitioners in all these writ petitions were initially appointed as Assistant Teachers in Primary Schools run and managed by U.P. Basic Education Board (in short, the Board) on substantive posts. They were subsequently promoted as Head Masters, or Assistant Teachers in Junior High Schools. All the Petitioners were appointed as Co-ordinators and Assistant Co-ordinators at the Block Resource Centres (B.R.C.) or in Nyaya Panchayat Resource Centres (N.P.R.C.) under the 'U.P. Education For All' project, in the year 1997-98, and in subsequent years, in pursuance of advertisements issued by the Basic Shiksha Adhikari of the District for appointments of Co-ordinators and Assistant Co-ordinators at Block Level and at Nyaya Panchayat levels through a selection committee headed by Basic Shiksha Adhikari. They were given training at the District Institutes of Employment and Training, and were appointed on deputation in the pay scale of Rs. 5,500-9,000 (revised to 6,500-10,500) for Co-ordinators and in the pay scale of Rs. 4,500-7,000 (revised to 5,500-9,000) for Assistant Co-ordinators. 3. By Government order dated 1.9.2001, a procedure was provided for selection of Co-ordinators/ Assistant Co-ordinators in B.R.C. and N.P.R.C. in U.P. the scheme, in its project No. I and II of U.P. Basic Education Project and District Projects for Primary Education-II and III. The Government order provided for eligibility, advertisement, selections committee, written examination, interview and appointments as well as assessment of works and recording of character role. All previous orders for selections were modified accordingly. 4. By Government order dated 29.6.2002 the Government order dated 1.9.2001 was amended. It was provided that the Co-ordinators/ Assistant Co-ordinators in B.R.C. and N.P.R.C. shall be selected for a maximum period of two years, after which fresh selections will be made, with a restriction that these persons shall not be considered in the fresh selections. For B.R.C., the teaching experience of 8 years for Co-ordinators, 3 years for Assistant Co-ordinators, and teaching experience of 5 years for Co-ordinators in N.P.R.C. was made compulsory, and further restriction was placed that those persons who have less than 10 years to retire shall not be considered for selection for these posts. For B.R.C., the teaching experience of 8 years for Co-ordinators, 3 years for Assistant Co-ordinators, and teaching experience of 5 years for Co-ordinators in N.P.R.C. was made compulsory, and further restriction was placed that those persons who have less than 10 years to retire shall not be considered for selection for these posts. The Specialist Basic Shiksha Adhikari, Sidharth Nagar issued Office Memorandum informing that the services of all the Co-ordinators/Assistant Co-ordinators in D.P.E.P. scheme has come to an end with the closure of the scheme on 30.6.2003 and that the orders of their repatriation shall be passed after the said date and these persons were required to hand over the charge to the Assistant District Education Officer. 5. On 7.5.2003, an advertisement was issued by Specialist Basic Education Officer, Sidharth Nagar in daily news paper 'Dainik Jagran' inviting applications for selections for the post of Co-ordinators and Assistant Co-ordinators for B.R.C. and N.P.R.C. in accordance with Government order dated 29.6.2002. By these writ petitions, the Petitioners have challenged the orders dated 27.6.2003 and the advertisement published by Expert Basic Shiksha Adhikari, Sidharth Nagar dated 7.5.2003 and have prayed that the Respondent may not interfere in their functioning and payment of salary. In Writ Petition No. 38986 of 2003 the Petitioners have challenged similar orders and advertisement inviting fresh applications for selection with regard to Co-ordinators/Assistant Co-ordinators in district Shahjahanpur. Similar reliefs on almost same facts have also been sought in other connected writ petitions on the same grounds. 6. Sri Ashok Khare, senior advocate submits that the posts of Co-ordinators/Assistant Co-ordinators are still continuing in B.R.C./N.P.R.C. The object, purpose and functions of both the schemes namely 'D.P.E.P.' and 'S.S.A.', is the same. The Petitioners were appointed without any condition or specifying any period. They were trained. There are no complaints against their work and conduct. In the circumstances, he submits that the fresh process of selection is grossly illegal and arbitrary. There is no rationale and object to be achieved in making fresh selections. The Government order dated 29.6.2002 cannot possibly be applied to allow the appointments afresh, and that there has been no individual assessment of the Petitioners' work and conduct before repatriating them to their substantive posts. There is no rationale and object to be achieved in making fresh selections. The Government order dated 29.6.2002 cannot possibly be applied to allow the appointments afresh, and that there has been no individual assessment of the Petitioners' work and conduct before repatriating them to their substantive posts. He submits that even if the Petitioners do not have any right to hold the post, they have a right under Articles 14 and 16 of the Constitution of India to be treated fairly and reasonably and that the exercise of power for fresh selections in the present case is wholly arbitrary. 7. Sri Subodh Kumar appearing for the Petitioners in Writ Petition No. 38986 of 2003 submits that both the schemes are serving same purpose. There is no change in the functions and duties of the Co-ordinators/ Assistant Co-ordinators in B.R.C./ N.P.R.C. and that the change in composition of selection committee and the procedure of selection is not such which may call for fresh selection. The Petitioners are trained personnel and have not been disqualified under the new scheme. He submits that there is absolutely no reason on record to repatriate Petitioners and hold that they are not eligible to apply for fresh appointments under the scheme. 8. Sri K. Shahi appearing for the Board of Basic Education, U.P. and Basic Shiksha Adhikari submits that the 'Education for all', Scheme (Sabhi Ke Liye Shiksha Pariyojna) was launched by the State Government in collaboration with Central Government and World Bank to be regulated and monitored by U.P. Sabhi Ke Liye Shiksha Pariyojna Parishad for providing formal and non-formal education to children between age group of 6 to 11 years. The scheme provided for reducing the dropout rate, reducing the gap between registration, and retention of children in schools, providing for schools at all the places, reducing the shortage of teachers, providing infrastructure including class rooms, toilets and water, alternative study centres, pre-primary education and emphasis on education of girl child, etc. The Block Resource Centres were provided at the Block level and Nyaya Panchayat Resource Centre at Panchayat level to provide supervision, academic input and periodical assessment. Initially the scheme was launched in eight districts. Thereafter it was spread out. The Block Resource Centres were provided at the Block level and Nyaya Panchayat Resource Centre at Panchayat level to provide supervision, academic input and periodical assessment. Initially the scheme was launched in eight districts. Thereafter it was spread out. The Government order dated 18.8.1994 (Annexure-2 to the writ petition) initially sanctioned the scheme upto to year 2000 after which all the posts under the scheme were to come to an end and transferred to and under Basic Education Board and for which expenses will be met by the U.P. Basic Education Board. In other districts, the scheme was known as D.P.E.P.-II and latter on the scheme covered all the remaining districts in U.P. as D.P.E.P.-III. By Government order dated 2.3.1998, it was decided by the State Government that the post of Co-ordinators and Assistant Co-ordinators will be deemed to be created upto 31.3.2003 and after that the appointment will come to an end. By Government orders dated 1.9.2001 and 29.6.2002, the eligibility and procedure for appointment of Co-ordinators and Assistant Co-ordinators were changed in the new scheme known as 'Sarva Shiksha Abhiyan', (S.S.A.). 9. Sri K. Shahi has given a comparative chart giving the qualifications and methods of selection and the term of Co-ordinators/Assistant Co-ordinators at B.R.C./N.P.R.C. in old scheme and in the new scheme, as follows: Old Scheme District Primary Education Programme New Scheme Sarva Shiksha Abhiyan Co-ordinator B.R.C. Head Master Primary School Head Master Primary School, or Assistant Teacher Junior High School or Co-ordinator N.P.R.C. having 2 years experience and having 8 years service and has not attained the age of 50 years. Assistant Co-ordinator B.R.C. Assistant Teacher Primary School Assistant Teacher in Primary School who has completed three years service and has not attained the age of 50 years. Co-ordinator N.P.R.C. Head Master Primary School Head Master Primary School or Assistant Teacher Junior High School having 5 years service and has not attained the age of 50 years. SCALE Co-ordinator B.R.C. Assistant Teacher Junior High School Head Master Junior High School Assistant Co-ordinator B.R.C. Head Master Prathmic School Co-ordinators N.P.R.C. Head Master Prathmic School Selection Advertisement by wide circulation In two News papers Selection Committee 1. Principal D.I.E.T. 1. Principal D.I.E.T. 2. District Basic Education Officer 2. Vice-Principal D.I.E.T. 3. Expert 3. Senior Lecturer D.I.E.T. 4. Basic Education Officer 5. Principal D.I.E.T. 1. Principal D.I.E.T. 2. District Basic Education Officer 2. Vice-Principal D.I.E.T. 3. Expert 3. Senior Lecturer D.I.E.T. 4. Basic Education Officer 5. Deputy Basic Education Officer Examination Maximum marks was not prescribed 45 marks Interview Marks was not prescribed 05 marks Term Term was not prescribed Two years term. 10. Sri K. Shahi submits that the D.P.E.P. programme has come to an end on 31.3.2003, and a new scheme namely 'Sarva Shiksha Abhiyan' (S.S.A.) for children upto the age of 14 years with modifications and special provisions of funding shared between the Central and State Governments has been provided. Due to change in eligibility and method of selection, the Petitioners do not have a right to continue in the new scheme. He submits that all the Petitioners will be repatriated to their substantive posts and will not suffer any loss. In the end he gives a statement that the Petitioners are not debarred from selections and in case they apply, they shall also be considered for fresh engagement under the scheme without any preference, for a period of two years as provided under the new scheme. 11. By interim order passed in these writ petitions, fresh selections were stayed. In special appeal, the Division Bench has modified the order to the extent that the selection will take place but no appointment will be made and the matter has been sent back for final decision. 12. All the Petitioners are holding substantive posts as Head Master and Assistant Teachers in Junior High School and Primary School run by U.P. Basic Education Board. The D.P.E.P. programme was initiated in eight districts in the State of U.P. with aid of Central Government and World Bank, to provide education for all the children upto age of 11 years. In the Universal Declaration of Human Rights, 1948, the right to education was treated as fundamental right. The India was signatory to World Education Conference, Dhaka, convened by UNESCO and in order to achieve the object under Article 48 of the Directive Principle of the State Policy in the Constitution of India, the 'Education For All' scheme was initiated. The scheme provided for involvement of community and to decentralise the primary education with the help of Gram Panchayat by constituting Gram Shiksha Samiti at the grass root level. The scheme provided for involvement of community and to decentralise the primary education with the help of Gram Panchayat by constituting Gram Shiksha Samiti at the grass root level. In order to supervise and to carry out the objects of the scheme, Block Resource Centres were set up, Community Resource Centres were provided at the Block levels and the centres were also set up at Gram Panchayat level. The District Institute of Education and Training was given the responsibility to supervise and to co-ordinate the objectives and funding of the scheme at the District level and State Institute of Education and Training at the State level. The D.P.E.P. provided for improvement in standard of education, achieving quality by brining substantial changes in the method of education, providing for a balance between the number of students and teachers, to provide for material and details for education and for in service training for teachers for primary education. The Block Resource Centres and centres at Nyaya Panchayat level were set up to provide academic input for successful implementation of the scheme, and to motivate the teachers for achieving the targets of providing for inspections, monthly meetings, competitions, work shops, as functional units. The Head Masters and Teachers of the schools run by Basic Education Board were invited for to be appointed after selection as Co-ordinators/Assistant Co-ordinators and at the B.R.C./N.P.R.C. for achieving the aforesaid objections. The scheme was spread out in the second and third phase covering the entire State. 13. The D.P.E.P. scheme has been replaced by 'Sarva Shiksha Abhiyan' in the continuing effort to universalise the elementary education by community ownership of the scheme, where it is responsible, for improving quality of basic education all over the country in an attempt to provide opportunity for improving capabilities of the poor children through community owned quality education. It involves Panchayat Raj institutions, the scheme management committee, village and slum level education committees, parents' teachers association, mothers' teachers association, the tribal autonomous councils, in the management of elementary schools. The effort is to achieve target in a partnership between Central and State Government. It involves Panchayat Raj institutions, the scheme management committee, village and slum level education committees, parents' teachers association, mothers' teachers association, the tribal autonomous councils, in the management of elementary schools. The effort is to achieve target in a partnership between Central and State Government. The aims and objects of the scheme as provided in the guidelines issued by State Institute of Education and Management Training, Allahabad, are to provide useful and relevant elementary education for all children in 6 to 14 years of age group by 2010 ; to bridge social and gender capabilities with active participation of the community in the management of the school ; to allow children to learn and master the natural environment in a manner which allows harnessing of their potential both spiritually and materially by value based learning. The object is to encourage and bring all children to school to complete 5 years of primary school to 2007 and 8 years of elementary schooling of 2010. The focus is elementary education by quality which emphasize education for life and to bridge the gender and social category gaps at primary stage by 2007, with elementary education level by 2010 and to universalise retention by 2010. The scheme provides for setting up block resource centre/cluster resource centre at block levels. The scheme also provides for identification of B.R.C./ N.P.R.C. personnel after intensive selection process in the preparatory phase and to train such personnel. 14. The D.P.E.P. programme targetted children upto 11 years and to achieve the purpose of increasing the enrolment of children to primary schools and more particularly enrolment of girl child. The gross enrolment ratio at the primary stage increased. There was, however, huge gap in the overall enrolment and it was found that out of 200 million children in the age group in the country, 59 million children are not attending schools out of which 35 millions are girls and 25 millions are boys. There were problems of dropout, reduce low level of learning achievements and low participation of girls and other disadvantage groups. It was found after surveys that there were habitations in the country without schools within a kilometre and there were systemic issues common in all communities like inadequate school and infrastructure, poor functioning schools, high teacher absentees, large number of vacancies, poor quality of education and inadequate funds. It was found after surveys that there were habitations in the country without schools within a kilometre and there were systemic issues common in all communities like inadequate school and infrastructure, poor functioning schools, high teacher absentees, large number of vacancies, poor quality of education and inadequate funds. In order to achieve the elusive goal of universalisation of elementary education with 100 per cent enrolment, and to achieve targets of National Policy of Education, 1986 for providing compulsory education to all children upto 14 years of age and to achieve the goals set out by the Supreme Court in the case of Unni Krishnan (1993), which recognised the right of free education to every child of the country until he completes the age of 14 years, the 'Sarva Shiksha Abhiyan' was initiated. This programme is a continuation of previous programmes with expanded targets, reach and objectives. The component of Sarva Shiksha Abhiyan, provisions of financial resource, planning and method of achievement of targets are different from the D.P.E.P. programme. 15. The Petitioners were not held out any assurance under the D.P.E.P. programme to be engaged as Co-ordinators/Assistant Co-ordinators for indefinite period. In Education For All programme in U.P., made it clear in the Government order dated 18.8.1984, that the posts shall be treated to be sanctioned upto year 2000, which was extended upto 2003 and that thereafter all the posts shall be placed under the U. P. Education Board. The Petitioners are holding substantive posts as Assistant Teachers and Head Masters in Primary Schools and Junior High Schools under the control and management by the U.P. Basic Education Board. There appointments letters issued by District Basic Shiksha Adhikari (D.P.E.P.) Sidharth Nagar/Specialist Basic Education Officer Sidharth Nagar specifically provided that they were appointed on deputation on a purely temporary arrangement which can come to an end at any time without any prior information. The appointment order made it absolutely clear that the deputation is upto the period of the scheme, or upto 31.3.2003 whichever is earlier, and the post shall be treated to be sanctioned only till that time. The Petitioners as such do not have a right to continue under the new scheme. 16. In Jaipal and Others Vs. The appointment order made it absolutely clear that the deputation is upto the period of the scheme, or upto 31.3.2003 whichever is earlier, and the post shall be treated to be sanctioned only till that time. The Petitioners as such do not have a right to continue under the new scheme. 16. In Jaipal and Others Vs. State of Haryana and Others, (1988) 3 SCC 354 , the Supreme Court considered the questions of payment of equal pay and for regularisation of the Instructors under the Audit and Non-Formal Scheme, under the Education Department of Haryana. The Supreme Court after considering the nature of duties and functions of the Supervisors found that the Instructors cannot be claimed to be part time employee merely on the ground that they were required to teach four hours and directed that looking to the nature of their work, their salary may be fixed in the same pay scale as that of Squad Teachers. Their claim for regularisation was not accepted as the project of Adult and Non-Formal Education was temporary and was likely to last only upto 1990. In M.D., U.P. Land Dev. Corpn. and Another Vs. Amar Singh and Others, (2003) 5 SCC 388 , the Supreme Court considered the claim of regularisation of the employees under the temporary scheme called "Million Wells Scheme". It was held when the project came to close. The employees who are working in the project will get any vested right and that even if their services were continued by virtue of interim orders passed in the writ petition, they cannot claim benefit of regularisation of their services as a matter of right. 17. For the aforesaid reasons, I find that Petitioners have no right to continue under the new scheme. They were on deputation and were not held out any promise, nor have they altered their position to any disadvantage, to apply principles of promissory estoppel. Their repatriation to their substantively held posts and selections of fresh, comparatively young and energetic hands to serve as Co-ordinators and Assistant Co-ordinators at Block and Panchayat levels in the new scheme, with revised eligibility, term, and selection procedure, in which they can also be considered in the new scheme with higher objectives, targets and reach, is not violative of their rights under Article 14 or 16 of the Constitution of India. All the writ petitions are consequently dismissed. All the writ petitions are consequently dismissed. The Petitioners shall have right to apply for selections under the 'Sarva Shiksha Abhiyan'. In case they have applied in pursuance of the advertisement made earlier, or apply afresh within a period of one month, their candidatures shall also be considered along with other applicants, without any preference. The costs are made easy.