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2010 DIGILAW 2105 (ALL)

REKHA DEVI v. STATE OF U. P.

2010-07-20

A.P.SAHI

body2010
JUDGMENT Hon’ble Amreshwar Pratap Sahi, J.—Heard learned counsel for the petitioner, learned standing counsel for the respondent Nos. 1, 2 and 3. Notice has been accepted by Sri S.K. Anwar for the respondent Nos. 3 and 5 and Sri Anuj Kumar for the respondent No. 4. 2. The main contest is with the respondent No. 6 who was issued notice and the acknowledgement has been returned after service of the notice on her. This service has been effected way back in the year 2007 but no counsel has put in appearance on behalf of the said respondent nor any counter-affidavit has been filed. So far as the respondent No. 7 is concerned the impugned order is in his favour against the post of general category, whereas the claim of the petitioner is against the post of reserved category. There is no clash of interest between the petitioner and the respondent No. 7. Therefore notice for the said respondent stands waived. 3. This dispute relates to the appointment on the two posts of Shiksha Mitra in a Primary School under the provisions of the government order promulgated for the said purpose. As noticed above inspite of service of notice none of the contesting respondents including the learned standing counsel have chosen to file any counter-affidavit in this matter. A stay order was granted on 27.4.2007 which has been continued from time to time. 4. The posts of Shiksha Mitra were initially sought to be filled up in November, 2004. It is alleged that in 2004 the respondent No. 6 and Archana Malviya were selected for the said two posts. The selected candidates did not join and the posts were lying vacant, where after in the year 2005 a fresh election of the office Gram Pradhan was held. The post of Gram Pradhan came to be occupied by a member of the Scheduled Caste category and therefore according to the government order which applies to the appointment on the post of Shiksha Mitra one of the post stands reserved in favour of the reserved category. Fresh proceedings were under taken for holding selections and accordingly an advertisement was issued on 6th August, 2006 for the said posts. The petitioner is stated to have been selected against the reserved post and the respondent No. 7 is stated to have been selected for the other post. Fresh proceedings were under taken for holding selections and accordingly an advertisement was issued on 6th August, 2006 for the said posts. The petitioner is stated to have been selected against the reserved post and the respondent No. 7 is stated to have been selected for the other post. The proposals were forwarded for approval and were pending consideration before the authorities. 5. In between the District Magistrate intervened through an order dated 13.9.2006 issuing directions for the engagement of the respondent No. 6 Punam Malviya. This was obviously done on the basis of her alleged selection in the year 2004. 6. The matter was engaging the attention of the authorities when two writ petitions came to be filed being Writ Petition No. 49350 of 2006 by Punam Malviya which was disposed of on 7.9.2006 directing the District Magistrate to decide her claim. It appears that it was pursuant to the said directions that the District Magistrate passed the order dated 13.9.2006. The other writ petition was filed by the petitioner and the respondent No. 7 Vikas Kumar Malviya jointly being Writ Petition No. 55736 of 2006 which was disposed of on 9.10.2006 issuing a direction to the District Magistrate to decide the claim of these two petitioners on the strength of fresh selection in the year 2006. 7. Faced with the aforesaid two directions the District Magistrate while proceeding to consider the claim of Punam Malviya indicated that Vikas Kumar Malviya respondent No. 7 has already been appointed against one of the posts and since the other post is already occupied by the selected candidate Punam Malviya, therefore the claim of Rekha Devi the petitioner was being rejected. This order dated 20.1.2007 is impugned in the present writ petition. 8. The position that emerges is that the District Magistrate has accommodated Punam Malviya on the strength of her selection in the year 2004 and has accommodated Vikas Kumar Malviya against the selection in the year 2006. In my opinion this is a complete mix up and the District Magistrate ought to have considered the impact of the fresh advertisement dated 6.8.2006 which has not been done. The District Magistrate could not have proceeded to consider the selection of 2004 alongwith the selection of the year 2006. It is either that the selection of 2004 survives or it is the selection of 2006 which has superseded the same. The District Magistrate could not have proceeded to consider the selection of 2004 alongwith the selection of the year 2006. It is either that the selection of 2004 survives or it is the selection of 2006 which has superseded the same. Both the selections cannot co-exist and in view of this the order of the District Magistrate does not appear to have been passed upon taking notice of the aforesaid factors. 9. At this stage, it would be relevant to notice that Punam Malviya who is respondent No. 6 has not chosen to put in appearance inspite of service of notice on her and an inference has therefore to be drawn against her that she has not chosen to contest the present writ petition. So far as the claim of the respondent No. 7 is concerned his claim has been considered and he has been approved in view of the advertisement dated 6.8.2006 against the general category post. If the other post on which the petitioner is seeking claim belongs to the reserved category then the same could not have been ignored without recording any finding with regard to the validity of the selection pursuant to the advertisement dated 6.8.2006. The District Magistrate has failed to advert to this aspect and therefore the order impugned is unsustainable. 10. Accordingly the order dated 20.1.2007 is quashed in so far as it relates to the rejection of the claim of the petitioner. However since Vikas Kumar Malviya and Punam Malviya have neither put in appearance nor chosen to contest, it is provided that the candidates who may be continuing against the two posts , shall continue till final orders are passed by the District Magistrate after giving opportunity of hearing to the respondent Nos. 6 and 7 as well. The District Magistrate shall passed orders within 3 months from the date of production of a certified copy of this order before him. The District Magistrate shall call for comments from the Gram Shiksha Samiti as well as Basic Education Officer before proceeding to pass the order. 11. The writ petition is allowed. No order as to costs. ————