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Allahabad High Court · body

2008 DIGILAW 2213 (ALL)

MEENA SRIVASTAVA v. STATE OF U. P.

2008-11-04

ARUN TANDON, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—Heard Sri Sanjay Kumar Shukla, learned counsel for the appellant, Sri Ghan Shyam Maurya, learned counsel for respondent No. 5, Sri V.K. Singh, learned counsel for respondent No. 4 and learned Standing Counsel for respondent Nos. 1 to 3. 2. With the consent of the parties this special appeal is being disposed of at the admission stage without calling for counter affidavit, in view of the order proposed to be passed today. 3. This special appeal has been filed against the judgment and order passed by the Hon’ble Single Judge dated 13th October, 2008, whereby the writ petition filed by the appellant has been dismissed as not maintainable. 4. The Hon’ble Single Judge has observed that the appointment of Shiksha Mitra is contractual in nature and they are paid honorarium. They are not government servant in any case. 5. Learned counsel for the appellant submits that the Shiksha Mitra is appointed in accordance with the Government Orders issued from time to time and the amount of honorarium is paid by the State Government through Gram Shiksha Samiti. The appointment and selection are regulated by the Government Order and implemented by the State Authorities including the Gram Shiksha Samiti, District Basic Education Officer and District Magistrate. 6. In the writ petition the appellant has challenged the advertisement issued by the District Basic Shiksha Adhikari, Gorakhpur. The appellant submitted before the Writ Court that he has already been selected as Shiksha Mitra and there was no occasion for issuing fresh advertisement inviting application for the post of Shiksha Mitra. The challenge made in the writ petition is to the advertisement issued by the State-authority. 7. We are of the view that the writ petition was maintainable. The mere fact that the Shiksha Mitra is paid honorarium by the State Government cannot be said to be a ground for dismissing the writ petition as not maintainable when the actions of the State officers are impugned in the writ petition. Petitioner can maintain a writ petition. We are of the view that the Hon’ble Single Judge has committed an error in dismissing the writ petition as not maintainable. 8. Petitioner can maintain a writ petition. We are of the view that the Hon’ble Single Judge has committed an error in dismissing the writ petition as not maintainable. 8. Reference may be had to the judgment of the Hon’ble Supreme Court of India in the case of Francis John v. Director of Education and others, AIR 1990 SC 432, wherein a writ petition was filed against the order passed by the Director of Education, the High Court dismissed the writ petition upholding the objections that the writ petition was not maintainable, since it was against a private school. The Hon’ble Supreme Court relying upon an earlier judgment in the case of Tika Ram v. Mundikota Shikshan Prasarak Mandal, AIR 1984 SC 1621 , held that the writ petition was fully maintainable. Relevant paragraphs i.e. paragraph 7 and 9 of the judgment of the Hon’ble Supreme Court of India in the case of Francis John (supra) are being quoted herein below : “7. The appellant contended in the writ petition that the proceedings of the Disciplinary Committee are in contravention of the principle of natural justice and fair play and the approval given by the Director of Education was unsustainable. The appellant relied upon the decision of this Court in Tika Ram v. Mundikota Shikshan Prasarak Mandal, (1985) 1 SCR 339 : ( AIR 1984 SC 1621 ) and contended that he was challenging the order of the Director of Education who had granted approval to his removal on the basis of a report submitted to him by the Dispute Settlement Committee and hence the Director of Education, who was a public authority and whose orders had been questioned before the Court was amenable to the jurisdiction of the High Court under Art. 226 of the Constitution. The High Court distinguished the above case by observing in Para 11 of its judgment thus (1988(1) Lab LN 762 at p. 765) : “.................Mr. Kakodkar had placed reliance on Tika Ram v. Mundikota Shikshan Prasarak Mandal, AIR 1984 SC 1621 , in support of his proposition that a writ petition would be maintainable in the case of a Headmaster of a private school who is dismissed by the management of a private school. In Tika Ram’s case, the petitioner was not seeking any relief against the management on the basis of the clauses in the School’s Code. In Tika Ram’s case, the petitioner was not seeking any relief against the management on the basis of the clauses in the School’s Code. But the Court observed (Para 3) : ‘In the instant case the appellant is seeking a relief not against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court.’ Obviously, no decision of an Officer of the Government is being challenged in the present case and hence, Tika Ram’s case is easily distinguishable.” 9. In the instant case also we are concerned with the Grant-in-Aid Code. The decision which was challenged before the High Court was the order of the Director of Education dated July 12, 1984 which is fully extracted above. It is further seen that a copy of the above order has been communicated by the Director of Education not merely to the Management of the School but also to the Zonal Officer, North Educational Zone, Mapsa and the Grant-in-Aid Section of the Directorate of Education. If the impugned orders of the Director of Education and of the Dispute Settlement Committee to which he had referred the case are set aside then the order of termination of service of the appellant, which is pursuant to them would also have to fall. Any private school which receives aid from the Government under the Grant-in-Aid Code, which is promulgated not merely for the benefit of the Management but also for the benefit of the employees in the School for whose salary and allowances the Government was contributing from the public funds under the Grant-in-Aid Code cannot escape from the consequences flowing from the breach of the Code and particularly where the Director of Education who is an instrumentality of the State is participating in the decision making process. Under these circumstances we find that the High Court was wrong in upholding that the orders of the Director of Education and of the Dispute Settlement Committee were not amenable to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this Court in Tika Ram’s case ( AIR 1984 SC 1621 ) (supra).” 9. In the facts of the present case writ petition has been filed against an action of a Government Officer, who is public authority. In the facts of the present case writ petition has been filed against an action of a Government Officer, who is public authority. The writ petition under Article 226 of the Constitution of India is maintainable against a public authority. The public authorities, who are State-authorities and instrumentalities are not to act arbitrarily, irrationally or unreasonably. Any action of public authority can always be impugned in the writ petition and it cannot be said that the writ petition is not maintainable in such case. 10. In view of the aforesaid, we are of the view that the writ petition is maintainable and could not have been dismissed by the Hon’ble Single Judge on the ground that appointment of Shiksha Mitra is contractual in nature and they are paid honorarium. The judgment and order of the Hon’ble Single Judge dated 13th October, 2008 is hereby set aside. The writ petiton is restored to its original number. Let the writ petiton be placed before the Hon’ble Single Judge afresh for consideration in accordance with law in the next cause list. 11. This special appeal is allowed subject to the observations made above. ———