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2010 DIGILAW 1807 (ALL)

Abha Shukla v. State of U. P. & Ors.

2010-05-27

ANIL KUMAR

body2010
Anil Kumar, J.- Heard Sri O.P. Sharma learned counsel for the petitioner in Writ Petition No. 6233 (S/S) of 2009 and Sri S.N. Misra, learned counsel for the petitioner in Writ Petition No. 1727(S/S) of 2010, Sri Vishal Verma, learned counsel appearing on behalf of District Basic Education Officer, Gonda and the learned Standing Counsel appearing on behalf of other opposite parties. With the consent of the learned counsel for the parties, as the controversy involved in both the writ petition are arising out of the same cause of action so both are heard and decided by a common judgment. BRIEF FACTS OF THE CASE The facts in brief are that on 27.10.2005, an advertisement was issued by Zila Basic Shiksha Adhikari, Gonda in various newspapers thereby calling upon an application from eligible candidates for appointment on the post of Shiksha Mitra. One of the post of Shiksha Mitra in the said advertisement was in respect to Shiksha Mitra at Primary Vidyalaya, Kungaiya situate at village Chhapia, Block Chappia, district Gonda. As per the terms and conditions of the advertisement, the candidates had to submit their application form alongwith the requested documents by 15.12.2005. However, by way of corrigendum ,the last date for submission of the application form was extended uptil 17.12.2005.Further, one of the requested condition to be fulfilled by a candidate was in respect to the submission of "Domicile Certificate" alongwith their application form. In response to above said advertisement, the petitioners of both the writ petition, namely, Aasha Devi and Abha Shukla alongwith other candidates submitted their application form. Smt. Aasha Devi alongwith application form submitted a domicile certificate issued by Gram Pradhan of the village Chappia Block Chappia, District Gonda. Later on, on 22.12.2005 Smt. Aasha Devi had submitted another domicile certificate issued by Sub Divisional Magistrate, Gonda. After considering the inter-se merit between the candidates, who had submitted there application form, the Village Level Education Committee of Gram Panchyat Chhakiya, Nyaya Panchayat, Parsidha, Block Chhapia, Tehsil - Mankappur, District Gonda on 26.12.2005 issued merit list in which the name of Smt. Aasha Devi find place at serial no. 1and the name of Smt. Abha Shukla was at serial no.2. Subsequently the said list was approved by the District Level Education Committee and Smt. Aasha Devi was sent for training and appointed on the post of Shiksha Mitra in Primary School Kungaiya. 1and the name of Smt. Abha Shukla was at serial no.2. Subsequently the said list was approved by the District Level Education Committee and Smt. Aasha Devi was sent for training and appointed on the post of Shiksha Mitra in Primary School Kungaiya. However, a complaint was made that Smt. Aasha Devi as per terms and condition of the advertisement had not submitted her domicile certificate issued by competent authority within the last date of submission of the application form but the same was submitted later on 22.12.2005 as she does not fulfill the requisite condition as per the terms of advertisement for appointment on the post in question so her appointment is illegal and liable to be cancelled. In view of the above said facts, by order dated 30.7.2009 passed by Basic Shiksha Adhikari, Gonda the appointment of the petitioner Smt. Aasha Devi was cancelled. Aggrieved by the order dated 30.7.2009, Smt. Aasha Devi for redressal of her grievance approached this Court by filling Writ Petition No. 4734(S/S) of 2009, (Aasha Devi Vs. State of U.P. and others), disposed of on 12.8.2009 with the following directions:- " The petitioner submits that after being selected by the village education committee she was given appointment in the year 2005 and after due renewal from time to time the petitioner is continuing till date. On a complaint on behalf of opposite party no.6, the Basic Shiksha Adhikari by an order dated 30.7.2009 has cancelled the appointment of the petitioner. The ground given by the BSA has some factual disputes about the dates on which domicile certificate was prepared and presented before the Committee. Since there is a factual dispute this Court does not feel proper to adjudicate the matter. Accordingly, the District Magistrate/Chairman, District Level Committee is directed to look into the matter personally and decide the representation of the petitioner which will be presented before him alongwith the certified copy of this order within a period of one month from that date. Till the decision on the representation by the District Magistrate in this regard the order dated 30.7.2009 passed by the Basic Shiksha Adhikari shall remain stayed and the opposite parties will allow the petitioner to continue on the said post. Till the decision on the representation by the District Magistrate in this regard the order dated 30.7.2009 passed by the Basic Shiksha Adhikari shall remain stayed and the opposite parties will allow the petitioner to continue on the said post. The District Magistrate will also hear the opposite party no.6 while deciding the representation of the petitioner." Thereafter in view of the said development, the matter in question came up for consideration before the District Magistrate, Gonda/Chairman District Level Committee for consideration in pursuance to the directions issued by this Court by order dated 12.8.2009 passed in Writ Petition No. 4734 (S/S) of 2009. The District Magistrate, Gonda/Chairman District Level Committee after hearing the parties concerned and on the basis of the material on record by order dated 11.9.2009 had held that the domicile certificate submitted by Smt. Aasha Devi for appointment on the post of Shiksha Mitra was issued by Sub Divisional Magistrate, Mankapur, District Gonda on 22.12.2005 i.e. after the last date for submission of application which was 14.12.2005 as per term of the advertisement. So Smt. Aasha Devi did not fulfill the requisite terms and conditions as per the terms of the advertisement at the time of submitting her the form but the same was done later on after her after the last date fixed for submitting the form. Accordingly, it was held that the selection of Smt. Aasha Devi was contrary to law and cancelled and a direction was issued by the competent authority/opposite party no.2 to hold fresh selection on the post of Shiksha Mitra for Primary School Kungaiya District Gonda. In compliance of the order dated 11.9.2009 the Basic Shiksha Adhikari, Gonda issued the order dated 14.9.2009 thereby directing the Secretary/Chairman Village Level Education Committee to take fresh steps for appointment on the post in question. In view of the said fact, the Writ Petition No. 6233(S/S) of 2009 (Smt. Aasha Devi Vs. State of U.P. and others) has been filed with the following prayers:- "(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 11.9.2009 passed by opposite party no.2 as contained in Annexure no. 1 to this writ petition. (ii) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 14.9.2009 passed by opposite party no.3 as contained in Annexure no. 2 to the writ petition. 1 to this writ petition. (ii) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 14.9.2009 passed by opposite party no.3 as contained in Annexure no. 2 to the writ petition. (iii) Issue a writ, order or direction in the nature of mandamus to restrain the opposite parties from making fresh selection and appointment on the post of Shiksha Mitra for Primary School- Kungaiya in Gram Panchayat- Chhakiya, Block Chhapia, Tehsil Mankapur District Gonda. (iv) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to work on the post of Shiksha Mitra in Primary School- Kungaiya, Gram Panchayat Chhakiya Shiksha Kshetra and Block-Chhapia, Tehsil Mankapur District Gonda and to make the payment of honorarium each and every month regularly. (v)Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to restrain from interfering in the working of the petitioner on the post of Shiksha Mitra in Primay School Kungaiya, Gram Panchayat Chakiya Shiksha Kshetra and Block Chhapia Tehsil Mankapur District Gonda." And Smt. Abha Shukla, has filed Writ Petition no. 1717 (S/S) of 2010, (Smt. Abha Shukla Vs. State of U.P. and others) with the following prayers:- "(i) A writ, order or direction in the nature of certiorari quashing the order dated 11.9.2009 passed by District Magistrate, District Gonda as well as order dated 14.9.2009 passed by Zila Basic Shiksha Adhikari, District Gonda so for as it relates for making denovo fresh selection for the post of Shiksha Mitra in Primary School Kungaiya, Village Panchayat- Chakiya, Post - Parsa Tiwari, Block Chhapiya Tehsil- Mankapur, District Gonda. (ii)A writ, order or direction in the nature of mandamus commanding the opposite parties to consider the case of the petitioner for appointment on the post of Shiksha Mitra ini Primary School Kungaiya, Village Panchayat-Chakiya, Post- Parsa Tiwari, Block Chhapiya, Tehsil- Mankapur, District -Gonda, in pursuance of the merit/select list dated 26.12.2005, proposal dated 1.1.2006 made by the village Education Committee and recommendation dated 28.6.2006 made by Tehsil Level Education Committee, in favour of the petitioner for appointment on the post of Shiksha Mitra in Primary School Kungaiya Village Panchayat- Chakiya Post Parsa Tiwari, Block Chhapiya, Tehsil- Mankapur District Gonda." SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE PARITES Sri O.P. Sharma, learned counsel for the petitioner in (Writ Petition no. 6233 (S/S) of 2009, Smt. Aasha Devi Vs. State of U.P. and others) submits that the impugned orders dated 11.9.2009 and 140.9.2009 passed by opposite party no.2 and 3 are illegal arbitrary because the Village Pradhan of Gram Panchayat Chhapia had issued a domicile certificate on 12.12.2005 mentioning that the petitioner Aasha Devi r/o village- Chakia, Post - Parasa Tewari, Shiksha Kshetra- Chappia Block - Chhapia District -Gonda, the said certificate was initially submitted by her alongwith other documents with her application in response to the advertisement within the prescribed time. However, subsequently thereafter Smt. Aashi Devi submitted another domicile certificate issued by S.D.M. Mankarpur, Gonda dated 22.12.2005 in addition to the domicile certificate already submitted prior to last date of submitting the application form and the said step taken by her was much prior to the resolution dated 26.12.2005 of the Village Level Committee of Gram Panchayat Chhakiya District Gonda who had conduct the selection in question and considering the said facts selected her for the post of Shiksha Mitra for Primary School in question. He further submits that Smt. Aasha Devi is the resident of village- Chakia, Post - Parasa Tewari, Shiksha Kshetra- Chappia Block - Chhapia District -Gonda which clearly established from the ration card and family register, bank pass book issued in favour of the petitioner, accordingly, the impugned orders dated 11.9.2009 and 14.9.2009 passed by opposite party no.2 and 3 as contained in anneuxure nos. 1 and 2 to the writ petition are liable to be set aside. In support of his arguments, he has relied upon the judgment of Hon'ble Supreme Court in the case of Suman Verma Vs. Union of India and others, 2005(1) Administrative Total Judgment, 553 and Rekha Charurvedi (Smt) Vs. University of Rajasthan and others, 1993 Supp (3) SCC 168 and the judgment and order dated 1.5.2002 passed in Writ Petition No. 384 (S/B) of 2002, Arvind Kumar Shukla Vs. Union of India through the Chief Post master General U.P. Circle, Lucknow & others . Sri S.N. Misra, learned counsel for the petitioner of Writ Petition No. 1717 (S/S) of 2010 (Smt. Abha Shukla Vs. Union of India through the Chief Post master General U.P. Circle, Lucknow & others . Sri S.N. Misra, learned counsel for the petitioner of Writ Petition No. 1717 (S/S) of 2010 (Smt. Abha Shukla Vs. State of U.P. and others) submits that the selection of Aasha Devi was rightly cancelled as she had not submitted the required documents (domicile certificate) alongwith her application form in response to the advertisement but domicile certificate issued by the competent authority was submitted by her on 22.12.2005 after the last date fixed of submission of the documents as per terms of the advertisement which was 17.12.2005 so her appointment was rightly cancelled by the impugned orders. He further submits that after canceling the selection of Smt. Abha Shukla by order dated 11.9.2009, the further action on the part of District Magistrate, Gonda thereby directing to hold de novo fresh selection by the impugned order is contrary to terms of the Government order which cover the filed because after cancellation of the selection of Aasha Devi, the petitioner (Abha Shukla) whose name finds place at serial no.2 in the select list has a rightful claim to be appointed on the post in question, so the order dated 11.9.2009 passed by the District Magistrate, Gonda so far it direct the concerned authority to proceed for fresh selection for the post of Shiksha Mitra at Primary School- Kungaiya Village Panchayat- Chakiya Block Chhapiya, Tehsil Mankapur, District Gonda and the consequential order dated 14.9.2009 passed by Zila Basic Shiksha Adhikari, Gonda, directing the Secretary/Chairman of Village Level Education Committee to proceed to hold fresh selection are illegal and arbitrary action in violation of Articles 14,16 and 21 of the Constitution of India. In support of his arguments, he relied upon the Judgments of this Court in the case of Smt. Neelu Devi Vs. State of U.P. and others ,2009 (27) LCD 916, Sabha Bahadur Verma Vs. State of U.P. and others ,2008 (26) LCD 664 and the judgment and order dated 19.3.2010 passed in Writ Petition No. 1554 of 2010, Seema Srivastava Vs. State of U.P. and others. State of U.P. and others ,2009 (27) LCD 916, Sabha Bahadur Verma Vs. State of U.P. and others ,2008 (26) LCD 664 and the judgment and order dated 19.3.2010 passed in Writ Petition No. 1554 of 2010, Seema Srivastava Vs. State of U.P. and others. Sri Vishal Verma, Advocate appearing on behalf of Basic Shiksha Adhikari, Gonda has submitted that in response to the advertisement issued for appointment on the post of Shiksha Mitra at primiary School- Kungaiya Village Panchayat- Chakiya Block Chhapiya, Tehsil Mankapur, District Gonda the last date of submission of form by the prospective candidate fulfilling all necessary conditions alongwith documents was 15.12.2007, extended later on up-till 17.12.2005. He further submits that one of the condition as per term the advertisement was for submission of domicile certificate. Smt Aasha Devi initially alongwith her application form submitted a domicile certificate issued by Paradhan of Gram Panchayat Chhakiya District Gonda on 12.12.2005 however later on she had submitted another domicile certificate issued by S.D.M. Mankapur, District Gonda dated 22.12.2005 i.e. after the last date of submission of form (17.12.2005). So her selection was cancelled against which she had approached this Court by filing Writ Petition No. 4734(S/S) of 2009 was disposed of by order dated 12.8.2009 thereafter the District Magistrate, Gonda vide order dated 11.9.2009 had cancelled the selection of Smt. Aasha Devi and directed to hold de novo selection on the post of Shiksha Mitra. Accordingly, necessary steps were taken by the Basic Shiksha Adhikar, Gonda by order dated 14.9.2009 so the said orders are perfectly valid. He further submits that after the cancellation of the selection of Aasha Devi, she had got no right for renewal of her appointment in the present case as per law, so the direction given by the competent authority to hold a fresh selection for the post in question is perfectly valid and in accordance to law laid down by this Court in the case of Sabha Bahadur Verma (supra), as such the grievance as raised by Smt. Abha Shukla in her case is also misconceived,so both the writ petitions lacks merit and are liable to be dismissed. FINDINGS AND CONCLUSION I have heard the learned counsel for the parties and perused the record. FINDINGS AND CONCLUSION I have heard the learned counsel for the parties and perused the record. In order to resolve the controversy raised in the present case, the first and foremost point is to be decided that who is the competent authority to issue domicile certificate the answer to this question find place in the Government Order dated 18.2.2000 which provides that the domicile certificate shall be issued by the District Magistrate/Additional District Magistrate/Sub Divisional Magistrate of the District after completing all the necessary formalities as mentioned therein so the competent authority to issue the domicile certificate is District Magistrate/Additional District Magistrate/Sub Divisional Magistrate of the district. Now reverting to the fact of the present case on 27.10.2005 an advertisement was issued by the Basic Shiksha Adhikari, Gonda calling upon the application form eligible candidate for appointment on the post of Shiksha Mitra in primary school falling in the district Gonda and one of the post for appointment was of Shiksha Mitra at Primary School- Kungaiya Village Panchayat- Chakiya Block Chhapiya, Tehsil Mankapur, District Gonda. Further in the Clause (1) of the advertisement dated 27.10.2005 the documents and other material to be submitted alongwith application form by the candidate for consideration of candidature for appointment on the post in question are mentioned Moreover, one of the necessary document domicile certificate to be submitted by the candidate and the last date was 11.202005, later on extended by corrigendum till 17.12.2005. In the instant case, Smt. Aasha Devi alongwith her application form had submitted a domicile certificate dated 12.12.2005 issued by Pradhan of the Gram Panchyat Chhakiya District Gonda on 14.12.2005. Later on, 22.12.2005 she had submitted another domicile certificate issued by Sub Divisional Magistrate, Gonda, and as the last date of submission of the application form in response to the advertisement was 17.12.2005 so Smt. Aasha Devi did not fulfill the mandatory condition as provided in clause (1) of the advertisement dated 27.10.2005 in respect to submission the domicile certificate issued by the competent authority which is necessary document to be submitted by a candidate alongwith her application form, so the application form submitted by her was incomplete and not in accordance to term of the advertisement. In view of the said fact, the order dated 11.9.2009 passed by the District Magistrate, Gonda thereby cancelling her appointment on the post of Shiksha Mitra on the said ground is perfectly valid, in accordance with law and needs not interference as in the case of Smt. Neelu Devi (supra) in which this Court has held that:- "We accordingly, hold that the submission of the domicile certificate alongwith the application for appointment for Shiksha Mitra is a must and non submission of the same within time renders the application form incomplete and liable for rejection." Further, a Division Bench of this Court in Special Appeal no. 907 of 2009, Subhash Chandra Vs. State of U.P. and others decided on 25.1.2010 has held as under:- "We do not find it necessary to address ourselves upon the effect of the Government Order dated 24.4.06, namely, whether it can be made applicable in the case or not and whether it can be treated retrospective, it being a clarificatory order only, which clarifies only the Government Order dated 12.11.05, in view of the Division Bench judgment in the case of Km. Rita Yadav (supra), as we find that in view of the admitted fact that the respondent did not furnish the domicile certificate within the time prescribed, i.e. alongwith the application form, her application ought to have been rejected and she could not have been considered for appointment. Since the said plea has not been considered by the learned Single Judge, though it was specifically raised as submitted by the learned counsel for the appellant and which specifically finds mention in the counter affidavit filed in the writ petition and has been seriously urged before this Court, normally the matter ought to have been remanded before the learned Single Judge, but in view of the established and admitted position, that the last date for submission of the application form was 3.12.05 and the said certificate was issued on 19.12.05, the application was to be rejected for want of domicile certificate, in terms of the conditions laid down in the advertisement, we, set aside the order dated 30.11.09 passed by the learned Single Judge and dismiss the writ petition preferred by the respondent ." In the case of Seema Srivastava Vs. State of U.P. and others in Writ Petition No. 1554 of 2010 decided on 19.3.2010 this Court has held as under:- "I find that the application form of the petitioner ws not compete on the date of its filling, therefore, authorities have not committed any illegality in rejecting the candidature of the petitioner. Apart from it, the validity of cause-12 of the advertisement cannot be taken into consideration on account of the fact that if the said rider is held to be ultra virus, it opens floodgates to the selection and it will be an unending proce3ss and selection will never attain finality." In the case of Rakha Chaturvedi (Smt) Vs. Unversity of Rajasthan and others, 1993 Supp. (3) SCC 168 the Hon'ble Supreme Court has held as under:- " We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualification as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decision of this Court in A.P. Public Service Commission Hyderabad Vs. B. Sarat Chandra (1990) 2 SCC 669 and District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram Vs. Tripura Sundari Devi, (1990) 3 SCC 655 ." Further, the other authorities cited by the learned counsel for the petitioner, Smt. Aasha Devi in support of her case namely Suman Verma (Supra) and the judgment and order dated 1.5.2002 passed in Writ Petition No. 384 (S/B) of 2002, Arvind Kumar Shukla Vs. Union of India and others are not applicable in the instant case in view of the aforesaid facts and circumstances as stated above so no benefit can be derive in her favour. Next question which is to be considered in the present case whether the action on the part of the concerned authority i.e. District Magistrate, Gonda after canceling the selection of Smt. Aasha Devi further directing by the impugned order dated 11.9.2009 for de novo selection and consequential order dated 14.9.2009 issued by Basic Shiksha Adhikari, Gonda, directing the Secretary/Chairman, Village Level Committee to proceed accordingly are valid or not. Admittedly, in the present case, the selection in question for appointment on the post of Shiksha Mitra relates to the year 2005 and as per the prevailing policy of the State Government which governs the field was that if a person appointed on the post of Shiksha Mitra and the period for which appointed, had expired then for the next session he/she has right for renewal subject to condition mentioned in the policy. However, the said policy was subsequently changed by the State Government by issuing Government Order dated 24.4.2009. Needless to mention herein the effect of the Government Order dated 24.4.2009 has been considered by this Court in the case of Sabha Bahadur Verma (Supra) and it was held that the same was prospective in nature and if any person is appointed prior to issuance of the Government Order dated 24.4.2009, he/she has got right for renewal on the post of Shiksha Mitra in view of the policy/Government Order issued in the year 2005, keeping in view the said fact after cancellation of appointment of Smt. Aasha Devi on the post in question Smt. Abha Shukla, whose name find place at serial no.2 in the merit list has got a right to be appointed/renewal, as such the order dated 11.9.2009 passed by opposite party no.2 and the consequential order dated 14.9.2009 issued by opposite party no.3 are contrary to law and could not sustain. In the light of the above said facts, the order dated 11.9.2009 passed by opposite party no.2, District Magistrate, Gonda so far it held that the cancellation of the appointment of Smt. Aasha Devi on the post of Shiksha Mitra on the ground that the she does not possess the requisite qualification (matter relating to domicile certificate) is perfectly valid, needs no interference. However, rest of the order dated 110.9.2009 issued by opposite party no.2 and the consequential order dated 14.9.2010 passed by District Basic Education Officer,Gonda thereby directing the Secretary/Chairman, District Level Education Committee to hold fresh selection on the post of Shiksha Mitra are liable to be set aside. For the foregoing reasons, the Writ Petition No. 6233 (S/S0 of 2009, Aasha Devi Vs. State of U.P. and others lacks merits and is dismissed. Writ Petition No. 1717 (S/S) of 2010, Smt. Abha Shukla Vs. For the foregoing reasons, the Writ Petition No. 6233 (S/S0 of 2009, Aasha Devi Vs. State of U.P. and others lacks merits and is dismissed. Writ Petition No. 1717 (S/S) of 2010, Smt. Abha Shukla Vs. State of U.P., is allowed, the concerned authorities are directed to take appropriate steps to appoint her on the post of Shiksha Mitra in Primary School Kungaiya, Village- Panchayat- Chakiya, Post- Parsa Tiwari, Block Chhapiya, Tehsil Mankapur, District Gonda. No order as to costs.