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2010 DIGILAW 841 (ALL)

ANOOP KUMAR MISHRA v. STATE OF U. P.

2010-03-15

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioner is the son of Madhu Sudhan Mishra. Madhu Sudhan Mishra was admittedly the member of the Gram Shiksha Samiti. He was also the Head Master of the Primary School where a Shiksha Mitra was to be appointed. The respondent No. 6, Smt. Santi Devi was appointed on the said post and the petitioner represented against the same. The said representation has been rejected on the ground that the petitioner’s selection was not possible as he happens to be the son of Madhu Sudhan in whose handwriting the entire proceedings have been prepared. The participation of Madhu Sudhan Mishra in the selection is established, therefore, the claim of the petitioner has been rightly rejected. 2. Learned counsel for the petitioner contends that even otherwise the petitioner was an instructor and, therefore, he was entitled to the benefits of first preference. He further submits that since the petitioner’s father was not the Secretary, therefore, the participation of Madhu Sudhan Mishra as a Member did not amount to any disqualification and as such the representation of the petitioner should not have been rejected. 3. An interim order was passed by this Court staying the operation of the order dated 7th July, 2007. A counter affidavit has been filed on behalf of the respondent No. 6 and it has been averred that as a matter of fact the petitioner somehow the other wanted to claim his appointment in spite of the fact that the Head Master of the Junior High School of the same village Mr. Chandra Bhushan Pandey who was the Secretary of the Gram Shiksha Samiti had deposed during the inquiry that he was not present at the time when the said selection proceedings were prepared. It has been further submitted that whatever be the position the respondent No. 6 being of the handicapped category was rightly selected and, therefore, an Anudeshak will not have any priority over the said respondent who is not of the physically handicapped category. The respondent further submits that the order has been passed after complying with the principles of natural justice and in view of the aforesaid admitted position of the participation of Madhu Sudhan Mishra there was no occasion for the petitioner to have claimed appointment. 4. The respondent further submits that the order has been passed after complying with the principles of natural justice and in view of the aforesaid admitted position of the participation of Madhu Sudhan Mishra there was no occasion for the petitioner to have claimed appointment. 4. Having perused the records, it appears that nine applications had been filed out of which the petitioner claims to be the only Instructor entitled to first preference under the Government Order dated 10th of February, 2005. The selections which were held on 18th November, 2005 indicate that the respondent No. 6, who was of the physically handicapped category, and whose highest merit has not been disputed, was selected. The proceedings which were drawn did not bear the signature of Mr. Chandra Bhushan Pandey who was the Head Master of the Junior High School and also the Secretary but the proceedings were drawn by Madhu Sudhan Mishra who is the father of the petitioner. The said proceedings were signed by Chandra Bhushan Pandey. The claim of the respondent No. 6 is that she was highest in merit as stated in Paragraph 5 which fact has not been denied in the rejoinder, except for the fact that the petitioner being an Instructor is entitled to the first preference. 5. One of the reasons given in the impugned order is that the petitioner could not have been selected as his participation as a candidate would be barred on account of the participation of his father Madhu Sudhan Mishra in the proceedings dated 18.11.2005. It has been recorded that since Madhu Sudhan Mishra had participated in the proceedings, therefore his son, the petitioner, was disqualified from being a candidate. 6. The question as to whether the son of a Secretary of the Gram Shiksha Samiti could be selected as a Shiksha Mitra or not is referable to the Government Orders which define a disqualification for the participation of the son of the Gram Pradhan of the village in question as also the Secretary of the Gram Shiksha Samiti who is to be the Head Master of the Primary School or the Junior High School as the case may be. The petitioner’s father was a member of the committee but Chandra Bhushan Pandey who was the Head Master of the Junior High School was entitled to function as Secretary being the Senior Most Head Master amongst the two Institutions. The petitioner’s father was a member of the committee but Chandra Bhushan Pandey who was the Head Master of the Junior High School was entitled to function as Secretary being the Senior Most Head Master amongst the two Institutions. Technically the petitioner may not be disqualified but it is indicated in the records that it was the petitioner’s father who drew the entire proceedings and it is in his hand writing. 7. The question of such a selection committee where the father is there will have to be considered in the light of the law laid down by the Supreme Court in a large number of decisions. It has been held that the constitution of a selection committee should indicate an absence of bias or a reasonable apprehension of bias. The close relation of the petitioner with his father and his participation, therefore, falls in such a category. These issues have been considered in a large number of decisions and an exhaustive decision on this issue is that of Indrapreet Singh and others v. State of Punjab and others, 2006 (11) SCC 356 . The tests of bias and likelihood of bias have been traced out in paragraphs 15 to 22 of the decision in the case of Ranjit Thakur v. Union of India, 1987 (4) SCC 611 . These issues relating to the proceedings of selection being vitiated on account of personal relationship of the selector and the candidate has been considered and dealt with in the cases of A.K. Kraipak v. Union of India, 1969 (2) SCC 262 , Paras 15, 16, 21 to 23 and G. Saxena v. Lucknow University, 1976 (3) SCC 585 , Para 6, Paras 9 to 14. An exception was carved out for a constitutional authority in the case of a Reference Under Act 317 (1) of the Constitution 2009 (1) SCC 337 as follows in Para 26; “26. The principle which requires that a member of a Selection Committee whose close relative is appearing for selection, should decline to become a member of the Selection Committee or withdraw from it leaving it to the appointing authority to nominate another person in his place need not be applied in case of a constitutional authority like the Public Service Commission.” 8. However, there is a distinction which has to be noticed that a Shiksha Mitra is not appointed on the basis of any selection which requires some subjectivity. The selection is conducted on the basis of merit and on the basis of marks obtained in the educational qualifications for which there are fixed norms. However, the participation of a father even in such an exercise in a given case may vitiate the proceedings as there is likelihood of his conducting himself in a way so as to affect the merit of the candidate. 9. In the instant case the mere preference claimed by the petitioner cannot override the preference of a physically handicapped lady who is otherwise higher in merit. In such a situation I do not find it a fit case to exercise the jurisdiction under Article 226 of the Constitution of India. 10. The writ petition lacks merit and is accordingly dismissed. ————