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2011 DIGILAW 1800 (ALL)

Rekha Devi v. State of U. P. and Others

2011-07-27

DILIP GUPTA

body2011
Hon’ble Dilip Gupta,J.—This petition has been filed for enforcing the order dated 28th September, 2010 passed by the District Magistrate, Ghazipur by which a direction has been issued for sending the petitioner for training. 2. The dispute relates to the post of Shiksha Mitra in a Primary School which was sought to be filled up in 2006. The petitioner was not selected as a result of which she filed Writ Petition No.20634 of 2007 which was allowed by the judgment and order dated 20th July, 2010 with the following directions:- “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 pass 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. The writ petition is allowed. No order as to costs.” 3. The District Magistrate, Ghazipur has now passed an order on 28th September, 2010 that the petitioner may be sent for training. It is the submission of the learned counsel for the petitioner that despite the aforesaid order, the petitioner has not been sent for training. 4. Learned Standing Counsel appears for respondent nos. 1 and 2. Sri K.S. Kushwaha appears for respondent no.3. 5. Learned counsel for the respondents have pointed out that in view of the Government Order dated 2nd June, 2010 no fresh engagement of Shiksha Mitra is being made in view of the provisions of the Right to Education Act, 2009 and, therefore, the petitioner cannot be sent for training. In this connection they have placed reliance upon the judgment of this Court rendered on 19th November, 2010 in Writ Petition No.6641 of 2010 (Tarun Prakash Pandey & Ors. In this connection they have placed reliance upon the judgment of this Court rendered on 19th November, 2010 in Writ Petition No.6641 of 2010 (Tarun Prakash Pandey & Ors. v. State of U.P. & Ors.) and the decision in Special Appeal No.1955 of 2010 filed by Tarun Prakash Pandey which was dismissed by the judgment and order dated 8th December, 2010. In the Special Appeal it was observed:- “The appellant has preferred this special appeal challenging the order of the learned Single Judge dated 19.11.2010 whereunder the writ petition was rejected by holding that keeping in view the Government Order dated 2nd June, 2010, no fresh engagement of Shiksha Mitra be made in view of the Right to Education Act, 2009, therefore, the Shiksha Mitras who are reported for training but could not complete due to lack of funds as per the demand made by the Principal of the college to the Director on 18.8.2010, cannot get any benefit thereof. We are of the view that there is no infirmity in the order of the learned Single Judge. The government order comes in the light on 2nd June, 2010. Admittedly the petitioner was called upon for training on 12th August, 2010 after the issuance of government order but due to lack of funds, training was not completed. The question of engagement of Shiksha Mitra, if any, will come after the completion of the training. Even assuming the fund has been allocated for the purpose of training, no purpose should be sub-served because fresh engagement of Shiksha Mitra is prohibited by the government. The learned counsel appearing for the appellant contended before us that the Government Order dated 2nd June, 2010 cannot be held applicable retrospectively when the appellant is required to complete his training. We are of the view that there is falacy of argument. Fresh engagement requires only after the training, therefore, when no engagement as such has been made, the case of the appellant will be hit by Government Order dated 2nd June,2010. Therefore, the appeal cannot be admitted. Hence it is dismissed, however, without imposing any cost. Copy of Government Order dated 2nd June, 2010 as placed by learned counsel appearing for authorities be kept with the record.” 6. In the present case also the order was passed by the District Magistrate on 28th September, 2010 for sending the petitioner for training. Therefore, the appeal cannot be admitted. Hence it is dismissed, however, without imposing any cost. Copy of Government Order dated 2nd June, 2010 as placed by learned counsel appearing for authorities be kept with the record.” 6. In the present case also the order was passed by the District Magistrate on 28th September, 2010 for sending the petitioner for training. This order is subsequent to the Government Order dated 2nd June, 2010. Thus, for the reasons mentioned in the judgment and order rendered in Tarun Prakash Pandey (supra), no relief can be granted to the petitioner. 7. The writ petition is, accordingly, dismissed. _____________