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2011 DIGILAW 1230 (ALL)

Pankaj Kumar v. State of U. P. And Others

2011-05-13

SATISH CHANDRA, UMA NATH SINGH

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Satish Chandra, J.;— Heard learned counsel for parties and perused the pleadings. 2. Learned counsel for appellant submitted that this appeal is barred by limitation as it has been filed with a delay of one month and five days. 3. However, learned counsel for appellant submitted that appellant would be entitled to get benefits in terms of various orders passed by learned Single Judge of this Court holding that if there is a delay in processing the recommendation for appointment as Shiksha Mitra made by Village Level Committee, the candidates cannot be penalised and further that the Circular creating a bar on fresh appointment of Shiksha Mitra is to apply prospectively. Such orders were passed in Writ Petition No. 1960 of 2010 (S/S) and Writ Petition No. 7451 of 2010 (S/S). 4. On the contrary, in the impugned order, learned Single Judge has held a different view holding that once the process of appointment was in the pipeline and the State Govt. took a decision imposing a ban on engagement of Shiksha Mitra, then there was no enforceable right in favour of the petitioners. 5. Learned counsel for appellant also referred to a judgment rendered by the Division Bench headed by Hon'ble Chief Justice in his favour. However, in the said judgment, the appellant had been denied appointment on the ground that other similarly situated 22 candidates who have been selected with him, had been given appointment. In this case also, the Division Bench has held that Govt. Order 2..6.2010 was to apply prospectively. 6. Learned counsel for Basic Shiksha Adhikari, Sri Jyotinjay Verma referred to another Division Bench judgment of Allahabad Bench wherein it was held that fresh engagement requires a prior training, therefore, when no engagement as such has been made, the case of the appellant will be hit by Govt. Order dated 2nd June, 2010. Sri Verma also submitted that though process of file started between 2008 and 2011 but the appellant did not raise any issue till 2011 or in any case before issuance of Circular of 2010. Learned Counsel also submitted that State Govt. has issued further two Circulars dated 22.2.2011 and 1.3.2011 but reiterates the first Circular dated 2.6.2010. Thus, intention of the Govt. Order has been made amply clear that there was a ban on engagement after first Circular dated 2.6.2010. Learned Counsel also submitted that State Govt. has issued further two Circulars dated 22.2.2011 and 1.3.2011 but reiterates the first Circular dated 2.6.2010. Thus, intention of the Govt. Order has been made amply clear that there was a ban on engagement after first Circular dated 2.6.2010. Similarly, learned State Counsel also referred to two judgments of the Supreme Court. In the judgment reported in AIR 1963 Supreme Court, page 395, Bachhittar Singh v. State of Punjab and another, a Constitution Bench laid down the basic law that even in a case where policy decision was taken as a part of cabinet noting in favour of a candidate yet if the same was not communicated to the person, it did not create any enforceable right. Learned State Counsel further referred to a judgment in Tagin Litin v. State of Arunachal Pradesh, 1996(5) SCC 83 wherein it was laid down that till appointment letter was issued or it was in transit, no enforceable right could be created. 7. In the instant case, though the learned counsel for appellant has annexed the recommendation of Village Level Committee but there is nothing to show that recommendation went up further or District Level Committee caused delay by sitting over the file. Moreover, the appellant had all the opportunity to agitate the issue before the date of issuance of Circular on 2.6.2010 but instead the writ petition was filed in 2011. Besides, there is nothing from the record to show that a decision was taken in favour of the petitioner or there was nothing like appointment letter for attending training under the Right to Education Act. Moreover, another Division Bench of Allahabad Bench in Tarun Prakash Pandey (supra), has categorically held that till the training was completed, there was no question of engagement as Shiksha Mitra and since there was ban on engagement even such candidates who had completed training after appointment, had no right to be communicated. 8. In view of the aforesaid, we are not inclined to entertain this special appeal. Hence, it is dismissed at the admission stage itself. _