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2010 DIGILAW 1065 (ALL)

Arun Kumar Tiwari v. State of U. P. and others

2010-03-31

PRADEEP KANT, SHABIHUL HASNAIN

body2010
Pradeep Kant and Shabihul Hasnain, JJ.- Heard the counsel for the appellant Sri Rama Kant Dlxlt, Sri Jyotinjai Verma for Basic Shiksha Adhikari and Sri Pradeep Kumar Singh for respondent No. 5. 2. This special appeal challenges the order passed by the learned single Judge dated 18.3.2010, by means of which the order dated 15.9.2009, by which the appellant was given appointment on the post of Shiksha Mitra, considering his merit in the selection held in the year 2004-05, apparently in pursuance of the order passed by this Court in Writ Petition No. 775 (S/S) of 2006 filed by respondent No. 5 for deciding the representation, has been quashed and the writ petition has been allowed. 3. In short, the facts of the case are that the selection for appointment on the post of Shiksha Mitra was held in the year 2004-05, in which selection, Vinay Kumar Singh, the respondent No. 5 in the present special appeal (petitioner in the instant writ petition) was selected and appointed. The present appellant, Arun Kumar Tiwari (respondent No. 5 in the instant writ petition) challenged the aforesaid selection by means of Writ Petition No. 7032 (S/S) of 2004. This writ petition was disposed of with a direction that Vinay Kumar Singh would continue upto May and thereafter a fresh selection be held. 4. Thereafter, Arun Kumar Tiwari filed a second writ petition bearing No. 8783 (S/S) of 2007 raising a grievance that his claim has not been decided on merits, on the basis of the selection already held, which writ petition was dismissed by the Court. A third writ petition was again filed by Arun Kumar Tiwari, bearing No. 8308 (S/S) of 2008, in which incidentally, the learned single Judge again passed an order for disposing of the representation. It is while considering this representation of Arun Kumar Tiwari that the Basic Shiksha Aahikari has given appointment to I present respondent No. 5. 5. One more writ petition bearing I No. 775 (S/S) of 2006 was filed by Vinay Kumar Singh, which was I disposed of on 30.1.2006, again with I a direction that the representation be decided. 6. The Basic Shiksha Adhikari I vide his order dated 15.9.2009, in pursuance of the directive issued in I Writ Petition No. 8308 (S/S) of 2008, gave appointment to Arun Kumar Tiwari. 7. 6. The Basic Shiksha Adhikari I vide his order dated 15.9.2009, in pursuance of the directive issued in I Writ Petition No. 8308 (S/S) of 2008, gave appointment to Arun Kumar Tiwari. 7. This appointment became the subject-matter of challenge in the instant writ petition, out of which the | present special appeal arises, wherein the learned single Judge has found that in view of the earlier order passed by the High Court, fresh selection is the only remedy and that Basic Shiksha Adhikari, by passing the impugned order dated 15.9.2009, has committed gross violation of the settled principles of law and has proceeded to give appointment to the opposite party No. 5 (the present appellant) illegally. 8. Learned counsel for the appellant submitted that since the merit of the appellant was not considered at any point of time, as per the selection held in the year 2004-05, therefore, in pursuance of the direction issued by the High Court in a subsequent writ petition for deciding the representation, if the Basic Shiksha Adhikari found that he was more meritorious and was entitled for appointment, no exception can be taken, as discretion was given by the High Court to decide the controversy involved, afresh. 9. His further submission is that the impugned order passed by the Basic Shiksha Adhikari takes into consideration the higher merit of the appellant as against the merit of the respondent No. 5 and that the selection held in the year 2004-05 could not have been confined to only that academic session, particularly in view of the fact that there is a provision for renewal of the appointment/engagement and since the vacancy also remained unfilled, therefore, the appointment order was rightly issued by the Basic Shiksha Adhikari. 10. In response, counsel for respondent No. 5 submitted that the controversy regarding the continuance of the appointed person, in pursuance of the selection held in the year 2004-05, was no more open to be considered by the Basic Shiksha Adhikari, in view of the judgment and order passed by this Court in Writ Petition No. 7032 (S/S) of 2004, wherein a specific direction was issued that the appointment so made shall continue till the month of May of that year and thereafter fresh selection be held. This order having not been challenged, the Basic Shiksha Adhikari could not have passed any order giving appointment on the basis of the selection of that very year. 11. He also disputed the fact that the merit of the respondent No. 5 was lower than that of the appellant and submitted that even on the basis of assessment of merit, the order passed by Basic Shiksha Adhikari suffers from manifest error and that if any appointment was to be given, that could be given to respondent No. 5 alone. 12. Sri Jyotinjai Verma appearing for Basic Shiksha Adhikari though tried to defend the order passed by the Basic Shiksha Adhikari but could not justify his action, in view of the existing orders passed by the High Court, which attained finality. 13. This Court has considered the question of renewal of the appointment of Shiksha Mitras on their post and in view of the scheme of the appointment of Shiksha Mitras. and has concluded that the selection/appointment made in one academic session would not automatically come to an end on the end of the said session but can be continued after considering the cases of Shiksha Mitras, individually. The Court has also found that' before making a fresh selection, it would be appropriate that the renewal of the Shiksha Mitra, who has been appointed and working on the post, be considered first and if it is found that he/she is not a fit person to be retained any more, of course, fresh appointment can be made. Reference can be made to the judgment in the case of Km. Shahjahan v. State of U. P. and others, 2008 (26) LCD 881 : 2008 (5) A WC 5279, decided on 17.1.2008, wherein the Division Bench has observed as under : "The Scheme of Universalisation of primary education, through the educated youth in its own village is not a scheme for providing jobs to the educated youth. It is a scheme for providing education and making the village people literate for which the youth has to come forward to render the services voluntarily. It is a scheme for providing education and making the village people literate for which the youth has to come forward to render the services voluntarily. In case the scheme is interpreted to mean that in every academic session a fresh selection is to be made it would have serious adverse effects, firstly, the selection process will have to start and continue in every year which may delay in appointments, resulting into deprivation of education, to the village people, which is the essential back-bone, purpose and object of the scheme and there would be no security or surety of Shiksha Mitra who has been granted appointment for a particular academic session as per Government order, so as to allow him to continue for the subsequent academic session making it open for others to adopt such means which are not legal for having the post of Shiksha Mitra which may lead to rampant corruption. Even otherwise, even if, the scheme had provided for selection of one academic session it could not have been justified the replacement of one Shiksha Mitra by another Shiksha Mitra every year. Besides, it would mean displacement of a person who has been assigned the job after full-fledged training with a new raw person. The scheme, therefore, says that if the work and conduct of Shiksha Mitra for a particular academic session is satisfactory, he/she can be selected for the next academic session also." 14. The instant case, however, has a different set of facts. The selection held in the year 2004-05 became the subject-matter of challenge in a writ petition filed before this Court in the year 2004 itself. That writ petition was disposed of specifically providing that the incumbent so selected, shall continue only upto the month of May and thereafter fresh selection shall be made. This order was not challenged any further and it thus, attained finality between the parties. 15. The filing of subsequent writ petition by either of the parties was, in fact, an abuse of the process of the Court and none of them could have claimed appointment or continuance on the basis of the selection made in the year 2004-05, in view of the order passed in the earlier writ petition. 16. 15. The filing of subsequent writ petition by either of the parties was, in fact, an abuse of the process of the Court and none of them could have claimed appointment or continuance on the basis of the selection made in the year 2004-05, in view of the order passed in the earlier writ petition. 16. Both the parties kept on filing writ petitions, one after the other, and the order passed on the writ petitions, some of which have been brought on record, show that they only made a request before the Court for issuing a direction for deciding the representation, which prayer appears to have been readily accepted by the Court, with the result that the Basic Shiksha Adhikari was given opportunity once more to enter into the controversy, which stood decided by a judicial order of this Court long back. 17. Here at this stage, it would be appropriate to put a word of caution that the prayer for issuing direction for deciding the representation need not be accepted readily by the Court, as the said prayer though appears to be innocuous but many a times, not only leads to multiplicity of litigation but also affects the precipitated rights of one or the other party, though there may not be any legal ground to challenge the selection or appointment or any order passed, which is the subject-matter of writ petition. 18. Mandamus to decide the representation normally can be issued when there is a statutory provision under which representation is made or if the Court finds that it is a fit case where the matter should be directed to be considered/reconsidered by the departmental authority but while doing so, it is also to be taken care of, that the authority whose order is under challenge, whether is the appropriate person for ^giving him one more opportunity to reconsider his own decision or such reconsideration is required to be made by the higher authority. 19. If the Court comes to the conclusion that it is a case, where the representation need be decided, a finding to that effect has to be recorded giving the reason as to why the matter requires reconsideration by the departmental authority, Le.. 19. If the Court comes to the conclusion that it is a case, where the representation need be decided, a finding to that effect has to be recorded giving the reason as to why the matter requires reconsideration by the departmental authority, Le.. some relevant factual or legal aspect was missed from being considered, by the authority, when he/she passed the order impugned, but the absence of any such reason, gives liberty to the authority concerned to pass any orders that he likes. This does not terminate litigation but increases, litigation, as the petitioner once comes to the Court and seeks a direction for deciding the representation and when the representation is decided, the aggrieved party again comes to the Court for challenging the order so passed. 20. The aforesaid observation does not in any way affect the discretion of the Court, who is having full jurisdiction to pass any appropriate orders, as the Court may deem fit, but relegating a person to the same authority, whose order is under challenge, may mean to give an opportunity to the same very authority either to stick to the order passed by him or to take a different view, though the power of review may not be available to him. 21. We have noticed that In number of matters, the learned counsel make the only prayer that the representation of the petitioner be directed to be decided and this special appeal is one such example, where on the request made by the counsel, the Court issued such a directive and the result Is that the Basic Shiksha Adhikari, under the protection given by this Court, has passed an order, which absolutely runs contrary to the orders passed by the Court in earlier writ petition. 22. We thus, do not find any illegality In the order passed by the learned single Judge. The special appeal is dismissed.