Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 1319 (ALL)

Reeta v. State of U. P. and Others

2012-05-31

MAHENDRA DAYAL, SATYA POOT MEHROTRA

body2012
Hon'ble Satya Poot Mehrotra,J. Hon'ble Mahendra Dayal,J. Heard Sri C.K.Jha, holding brief for Sri V.M. Tripathi, learned counsel for the petitioner/appellant and the learned Standing Counsel appearing for the respondent nos. 1,2 and 3, and perused the record. 2. The present Special Appeal has been filed against the Judgment and Order dated 15.1.2009 passed by the Learned Single Judge whereby , Civil Misc. Writ Petition No. 1079 of 2009 filed by the petitioner/appellant has been dismissed. 3. It appears that pursuant to the advertisement issued in the year 2007, the petitioner/appellant was selected as Shikha Mitra in the Primary School, Village Guleli, Vikas Khand Ram Nagar, Tehsil Avola, District Bareilly .The petitioner/appellant claimed herself to be the resident of Village Guleli, Vikas Khand Ram Nagar, Tehsil Avola, District Bareilly.Smt. Navneeta (Respondent no.5 herein ) , who was also applicant for selection as Shiksha Mitra, made a representation against the selection of the petitioner/appellant on the ground that the selection of the petitioner/appellant was against law , as she was not resident of Village Guleli. After submitting the said representation, Smt. Navneeta ( Respondent no. 5 herein ) filed a Writ Petition being Civil Misc. Writ Petition No. 53089 of 2007 before this Court, and this Court , by the order dated 13.11.2007 ,disposed of the said Writ Petition , interalia, directing that the representation made by Smt. Navneeta ( Respondent no. 5 herein ) be considered and appropriate decision be taken on the said representation within the period mentioned in the said order dated 13.11.2007. 4. Pursuant to the said decision dated 13.11.2007, the matter was taken -up before the District Magistrate. Bareilly on 2.4.2008. The District Magistrate, Bareilly directed the Sub-Divisional Magistrate, Avola, Bareilly , by the communication dated 17.4.2008, to enquire into the matter, and submit his Report. The Sub-Divisional Magistrate, Avola, Bareilly submitted his Report dated 22.5.2008. As the said Report did not clarify the position in regard to the residence of the petitioner/appellant in the Village Guleli , the Sub -Divisional Magistrate, Avola, Bareilly was again directed to submit fresh Enquiry Report. Accordingly, the Sub-Divisional Magistrate, Avola, Bareilly submitted his Report dated 3.10.2008, inter-alia, stating that the father of the petitioner/appellant was employed in Bareilly since 1976 and he was residing in Bareilly. Accordingly, the Sub-Divisional Magistrate, Avola, Bareilly submitted his Report dated 3.10.2008, inter-alia, stating that the father of the petitioner/appellant was employed in Bareilly since 1976 and he was residing in Bareilly. The Sub-Divisional Magistrate, Avola, Bareilly in the said Report dated 3.10.2008 also mentioned regarding Ration- Cards and Voter- Lists in respect of the family of the father of the petitioner/appellant . 5. Thereafter, the District Magistrate, Bareilly passed a detailed order dated 28.11.2008 taking into consideration the material on record including the Enquiry Report submitted by the Sub-Divisional Magistrate, Avola, Bareilly, and concluded that the petitioner/appellant was resident of Bareilly, and not of Village Guleli. Accordingly, the District Magistrate, Bareilly cancelled the selection of the petitioner/appellant as Shiksha Mitra, and instead directed that Smt. Navneeta ( Respondent no. 5 herein ) be selected as Shiksha Mitra in the aforesaid Primary School. 6. From a perusal of the said order dated 28.11.2008, we find that the District Magistrate considered in detail the material on record including the Enquiry Report submitted by the Sub-Divisional Magistrate, Avola , Bareilly and concluded that the petitioner/appellant was actually resident of Bareilly, and not of village Guleli. The said finding recorded by the District Magistrate, Bareilly is a finding of fact. No illegality or perversity has been shown in the said finding recorded by the District Magistrate , Bareilly , and therefore, the said finding cannot be interferred with in the exercise of Writ Jurisdiction under Article 226 of the Constitution of India. 7. We agree with the view expressed by the learned Single Judge in the impugned Judgment and Order in this regard. As regards the question of opportunity of hearing to the petitioner/appellant, a perusal of the order dated 28.11.2008 shows that on 2.4.2008, both the sides were heard by the District Magistrate, Bareilly.It is difficult to believe that the petitioner/appellant did not participate in the proceedings before the District Magistrate , Bareilly subsequent to 2.4.2008, particularly when the interest of the petitioner/appellant was going to be vitally affected by the decision of the District Magistrate, Bareilly. In the circumstances, we are of the view that the petitioner/appellant was given opportunity of hearing. 8. In the circumstances, we are of the view that the petitioner/appellant was given opportunity of hearing. 8. Even otherwise, as noted by the Learned Single Judge in the impugned Judgment and Order, the assertion regarding the opportunity of hearing being not given was made in para 16 of the Writ Petition which was sworn on legal advice. In this view of the matter, it is difficult to believe that assertion of the petitioner/appellant regarding denial of opportunity of hearing . 9. In view of the above discussion, we are of the view that the Special Appeal lacks merits, and the same is liable to be dismissed .Accordingly, the Special Appeal is dismissed. However, on the facts and in the circumstances of the case, there will be no order as to costs. _