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2006 DIGILAW 363 (ALL)

NIRMALA DWIVEDI v. STATE OF UTTAR PRADESH

2006-02-07

A.P.SAHI

body2006
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioner in this writ petition has challenged the select list prepared by the Respondent No.2 - the District Basic Education Officer, Chitrakoot, declaring the Respondent No. 5 to have been selected for being appointed as “Shiksha Mitra” under the Government Order dated 26.5.1999 read with the Government Orders dated 1.7.2000 and 10.10.2005 respectively. The petitioner contends that the said action of the authority is in violation of the selections made by the Gram Shiksha Samiti - Respondent No. 4 of Gram Sabha Ailaha Budhaiya, Post Office Manikpur, district - Chitrakoot, and is, therefore, in violation of the Government Orders referred to herein above. On merits, the petitioner contends that her average marks are 63.5% whereas that of Respondent No. 5 is 47% and, as such, the petitioner being higher in merit was entitled to be appointed as per the resolution of the Gram Shiksha Samiti. It is further alleged that the petitioner has also functioned as an Instructor under the non-formal education scheme and, as such, she is also entitled for being appointed on the basis of first preference as per the Government Order dated 10.10.2005. In view of the aforesaid contentions, the petitioner urges that the selection and appointment of Respondent No. 5 is invalid and is liable to be set aside. 2. The learned Standing Counsel, appearing on behalf of the Respondent Nos. 1, 2 and 3, has urged that in view of the decision of a learned single Judge of this Court in the case of Kamla Pati Tripathi v. District Basic Education Officer and others, 2005 (3) ESC 1986 , the present writ petition is not maintainable. He contends that the appointment being purely contractual in nature and since only an honorarium is to be paid to a Shiksha Mitra, a writ petition would not be maintainable. A perusal of the judgment relied upon by the learned Standing Counsel indicates that the said case related to a challenge to the action of the Basic Education Officer, whereby he had restrained the petitioner therein from discharging his duties in the institution after the petitioner had been appointed and had already started working in the institution. A perusal of the judgment relied upon by the learned Standing Counsel indicates that the said case related to a challenge to the action of the Basic Education Officer, whereby he had restrained the petitioner therein from discharging his duties in the institution after the petitioner had been appointed and had already started working in the institution. The Basic Education Officer had taken the action on the ground that the appointment of the petitioner therein was irregular and, as such, the petitioner prayed for quashing of the order passed by the headmaster of the institution. 3. Relying on the decision in the case of Smt. Sunaina Singh, 2003(4) ESC 2039 (All)(DB), and other decisions referred to therein, the Court went on to hold that since the services of the petitioner were contractual, therefore, any infringement of rights of the petitioner could be agitated in the ordinary courts of the land for the breach of contract of employment and that the remedy of the writ petition is misconceived. In support of the aforesaid conclusion, the learned single Judge in para 14 of the judgment held as under : “In view of the law laid down by Hon’ble the Apex Court, it will be evident that at the time of entry into the field on consideration of persons with whom the Government could contract at all act purely in its executive capacity and is bound by its obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers and in such case if there is any violation of constitutional powers and the powers by the authorities of State, the writ petition is maintainable. But after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of constitutional provision when the State or its agents purporting to act within the field perform any act. In the sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract.” 4. In the sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract.” 4. A perusal of the said paragraph indicates that the learned single Judge was of the opinion that once the contract of service has been entered into then no remedy would lie by way of a writ petition. However, the learned single Judge further found that a writ petition would be maintainable where the State while dealing with individual citizens violates its own obligation which it professes to perform in its executive capacity before the contract is entered into. Thus, there was a distinction drawn by the learned single Judge himself on the facts of that case. 5. The aforesaid decision of the learned single Judge was rendered on 12.4.2005. Such a preliminary objection with regard to maintainability of a writ petition was also taken before this Court in the case of Urmila Chaurasia v. State of U.P. and others, 2005 (4) ESC 2548 . In the said case, the learned Standing Counsel did not bring to the notice of the Court the aforesaid decision of the learned single Judge referred to herein above but took the preliminary objection on the basis of a Division Bench judgment in the case of Smt. Mala Devi v. State of U.P. and others, Special Appeal No. 547 of 2004, decided on 17.5.2004. The said decision in the special appeal in turn had approved of the decision of a learned single Judge of this Court in Writ Petition No.15908 of 2003, Pradeep Kumar v. Adhyaksh, Gram Shiksha Samiti, decided on 15.4.2003. The decision in the case of Pradeep Kumar held that the post of Shiksha Mitra was not a civil post and was an appointment under a scheme of the Government on a payment of honoraria. This view was approved by the special appellate bench in the case of Mala Devi. The decision in the case of Pradeep Kumar held that the post of Shiksha Mitra was not a civil post and was an appointment under a scheme of the Government on a payment of honoraria. This view was approved by the special appellate bench in the case of Mala Devi. Dealing with the aforesaid preliminary objection in the case of Urmila Chaudhary, it was discovered that the judgment of the learned single Judge in the case of Pradeep Kumar had already been set aside on 5.5.2003 and, as such, the judgment was not in existence on the date when the same was approved by the Division Bench in Mala Devi’s case. 6. This Court after tracing the constitutional provisions and the statutory provisions under the Basic Education Act constituting the Gram Shiksha Samiti as also the powers of the State Government to issue directions to perform such other functions by the Gram Shiksha Samiti, held that the Government Orders issued by the State Government for appointment of Shiksha Mitra had the force of law and that violation of any of the provisions of the Government Order would be sufficient to maintain a writ petition. The said decision did not draw any distinction between the actions taken before entering into the contract of employment as Shiksha Mitra or thereafter. This Court further went on to indicate that merely because the post of Shiksha Mitra is not a civil post, the same could not be a ground for non-suiting a writ petition which was maintainable against arbitrary State action under the Government Orders promulgated by the State Government. 7. During the course of submissions, the attention of the Court was invited to the decision in the case of Smt. Sunaina Singh v. District Magistrate, Mau, and others, 2003 (6) AWC 4898, wherein it was held that an Angan Bari worker employed under the child welfare scheme funded by the world bank had no right to maintain a petition as the service rendered by such an employee was purely on ad hoc basis under a scheme of the world bank and was only paid an honorarium. The Court further went on to conclude that since there were no service Rules entitling an Angan Bari worker to claim continuance and since the scheme under which such a worker was claiming continuance was not placed before the Court, the Court ruled that it will not be possible to equate such an appointment with regular service governed by any Act or Rules. It is evident from a perusal of the said judgment that there was no material before the Division Bench which would indicate the regulation of services of an Angan Bari worker under any Rule for the time being in force. 8. Another decision to which the attention of the Court was invited to is the Division Bench decision in the case of Alok Kumar Singh v. State of U.P. and others, 2002 (2) ESC 427. A perusal of the said decision indicates that certain ad hoc Lecturers were engaged after approval from the Director of Higher Education under a scheme promulgated by the State Government in order to ensure that the teaching work in Colleges may not be adversely affected. The engagement was for a very short span of time on the basis of payment of honorarium and the engagement was purely contractual and transitory in nature. These appointments were made to meet the contingency that had occurred on account of non-selection of regular candidates by the Commission. The Court held that the Government Order which was issued under the executive power of the State did not confer any right of continuance on such ad hoc employees and that they had no right to pray for quashing of the advertisement issued by the Commission for appointment through regular selections. A perusal of the said judgment indicates that it nowhere touched the maintainability of a writ petition and rather went on to hold that the petitioners therein had no right to the post as it was purely ad hoc engagement and, therefore, they were not entitled to any relief claimed in the said writ petition. This situation was again agitated before a Division Bench of this Court in the case of Smt. Ram Devi v. Director, Bal Vikas Sewa Avam Pushtahar, U.P., Lucknow and others, 2006 (1) AWC 168 , which was yet another case relating to an Angan Bari worker. This situation was again agitated before a Division Bench of this Court in the case of Smt. Ram Devi v. Director, Bal Vikas Sewa Avam Pushtahar, U.P., Lucknow and others, 2006 (1) AWC 168 , which was yet another case relating to an Angan Bari worker. The Division Bench after taking notice of the ratio of the decision in the case of Sunaina Devi (supra) came to the conclusion that the claim of promotion by an Angan Bari worker on the post of Mukhya Sevika was entertainable and in paragraph 13 of the said judgment, the Court went on to hold that the proposition laid down in the case of Sunaina Singh was not attracted. The appeal was allowed for consideration of the claim of promotion of the appellant therein. 9. The question of termination of services of some Angan Bari worker again cropped up before this Court and a learned single Judge dismissed the writ petition holding that a writ would not be maintainable in this regard. The learned single Judge placing reliance on the case of Sunaina Singh (supra) had dismissed the writ petition. A Special Appeal against the said decision being Special Appeal No. 1121 of 2005 was preferred and a Division Bench of this Court presided over by the same Bench which had decided Smt. Ram Devi’s case has, after taking notice of their previous judgment, prima facie as an interim measure held that a writ petition pertaining to the challenge to a termination order was entertainable under Article 226 of the Constitution after recording a finding that the order impugned therein was in violation of the principles of natural justice. However, while entertaining the special appeal, the matter was referred to the Hon’ble Chief Justice for constituting a larger Bench for an authoritative pronouncement on the question as to whether a writ petition filed by an Angan Bari worker, who was only paid an honorarium, would be maintainable under Article 226 or not. The said order was passed on 30.9.2005. 10. Learned counsels for the petitioners and the other writ petitions which were also pertaining to the same subject matter, have urged that the judgment of Kamla Pati Tripathi (supra) is per incuriam as the judgment has been delivered without taking notice of the relevant statutory provisions and the Government Orders as referred to in Urmila Chaurasia’s case. 10. Learned counsels for the petitioners and the other writ petitions which were also pertaining to the same subject matter, have urged that the judgment of Kamla Pati Tripathi (supra) is per incuriam as the judgment has been delivered without taking notice of the relevant statutory provisions and the Government Orders as referred to in Urmila Chaurasia’s case. They have further relied on the ratio of the decisions in the case of Mahabir Auto Stores and others v. Indian Oil Corporation and others, AIR 1990 SC 1031 (paragraphs 12, 17 and 18) and the decision in the case of Tata Cellular v. Union of India, 1994 AIR SCW 3344. The petitioners have also relied on the decision of the Apex Court in the case of Director of Settlements A.P. and others v. M.R. Apparao and another, 2002 AIR SCW 1504, for the proposition that the decision in the case of Kamla Pati Tripathi (supra) rendered by the learned single Judge is a declaration of law only to the extent as contained in paragraph 14 of the said judgment and, therefore, it is not a law of universal declaration and they have further urged that the binding force of the said decision is taken away by the law laid down in the case of Smt. Ram Devi (supra). Thus, they say his because of the fact that the case of Sunaina Singh (supra) has already been explained as not being applicable which had been relied by the learned single Judge in the case of Kamla Pati Tripathi. 11. From a perusal of the submissions advanced and recorded herein above, it is evident that the question of maintainability of a writ petition in the case of Angan Bari worker has already been referred to a larger Bench for an authoritative pronouncement on the question of maintainability arising out of breach of the terms of contract of employment including termination. However, while referring the matter, the Division Bench has, prima facie, found the petition to be maintainable. The nature of appointment of Shiksha Mitra stands on a better footing than that of an Angan Bari worker inasmuch as pointed out in Urmila Chaurasia’s case (supra) the regulation and control of such an appointment is clearly vested in a statutory authority namely the Gram Shiksha Samiti constituted under Section 11 of the Basic Education Act, 1972. The nature of appointment of Shiksha Mitra stands on a better footing than that of an Angan Bari worker inasmuch as pointed out in Urmila Chaurasia’s case (supra) the regulation and control of such an appointment is clearly vested in a statutory authority namely the Gram Shiksha Samiti constituted under Section 11 of the Basic Education Act, 1972. The Government Orders governing the appointment of Shiksha Mitra have been issued for regulating and governing the appointment of Shiksha Mitra which are funded by the world bank and channelized through the Central Government and the State Government. The nature and extent of control over the appointment of Shiksha Mitra has been clearly dealt with in Urmila Chaurasia’s case which aspects have nowhere been dealt with in the case of Kamla Pati Tripathi (supra). In my opinion in such a situation where the continuance of a Shiksha Mitra is dependent upon the fulfilment of the terms of the Government Order then in that event any violation of the Government Order if pointed out after the contract of service is entered into would not make any difference inasmuch as contract of service is itself governed by the terms of the Government Order. The engagement, if found to be in contravention of the Government Order, even after the contract is entered into, is open to challenge seeking protection under the Government Orders that has brought into existence such a contract of employment. 12. The judgment of the Division Bench in the case of Smt. Ram Devi (supra) clearly binds this Court so long it is not reversed by a larger Bench or by the Apex Court. While referring the questions arising out of a termination of an Angan Bari worker, the said decision has again been relied upon in Special Appeal No. 1121 of 2005 and by an interim judgment therein the same view has been reiterated. A writ petition has been found to be at least “prima facie” maintainable in the matter of an Angan Bari worker’s continuance in service. 13. The said issue therefore is, at least, at the present, in favour of the petitioner. This Court does not find any good reason to take any other view and respectfully binds itself with the same. The interim judgment is Special Appeal No. 1121 of 2005 for the moment decides to maintain a writ petition of this nature. 13. The said issue therefore is, at least, at the present, in favour of the petitioner. This Court does not find any good reason to take any other view and respectfully binds itself with the same. The interim judgment is Special Appeal No. 1121 of 2005 for the moment decides to maintain a writ petition of this nature. Even otherwise the aforesaid view is of a Division Bench and has to be respected. 14. With utmost respect to the learned single Judge in the decision of Kamla Pati Tripathi (supra), it would be difficult to accept the distinction between a contract of employment prior to its consummation or thereafter keeping in view the terms of the Government Order. The Government Orders for appointment of Shiksha Mitra have been issued in exercise of executive powers of the State under Article 162 of the Constitution and, as such, have the force of law. As noticed in the judgment of Urmila Chaurasia, the State Government has the power to issue such instructions in respect of matters entrusted to Gram Shiksha Samiti referred to in clause (g) of sub-section (11) of Section 2 of the Basic Education Act. The sweep of the aforesaid provision is wide enough so as to include the function entrusted to the Gram Shiksha Samiti by the State Government of engaging a Shiksha Mitra whose function is essentially to impart education to children in the institution established by the Basic Education Board and governed by the provisions of the Basic Education Act 1972. The function of providing basic education is a public duty of the State and which finds manifested in the legislation of U.P. Basic Education Act, 1972 on which subject the State has the power to legislate under Entry 25 of List III of the list appended to the Vllth Schedule of the Constitution of India. 15. Thus, the appointment of Shiksha Mitra is squarely governed by the provisions contained in the Government Orders which, in my opinion, have the force of law and, therefore, any act in violation of the Government orders referred to herein above either before the contract of engagement is entered into or thereafter if pointed out can be interfered with in the exercise of powers conferred on this Court under Article 226 of the Constitution of India. 16. 16. Accordingly, the preliminary objection raised by the learned Standing Counsel is over ruled and the petitions in such matters including the present writ petition are held to be maintainable. 17. In the present writ petition, it is evident that the list issued by the Basic Education Officer includes the names of the Respondent No. 5 whereas the resolution of the Gram Shiksha Samiti which is the authority competent to make the selections has resolved in favour of the petitioner on the basis of her highest merit and also on the basis of her claim of first preference under the Government Order dated 10.10.2005. 16. Under the Government Orders referable to the controversy, the matters pertaining to such appointments are to be resolved by the district level committee which is chaired by the District Magistrate of the district concerned. Accordingly, this writ petition is disposed of with a direction to the Respondent No.3 - District Magistrate to examine the complaint of the petitioner and thereafter pass an appropriate order in accordance with law keeping in view the observations made herein above as expeditiously as possible preferably within a period of 6 weeks from the date of presentation of a certified copy of this order before him after putting to notice the Respondent No. 5 as well. The selection and appointment of the Respondent No. 5 shall abide by the orders of the District Magistrate. Order Accordingly.