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2012 DIGILAW 2104 (ALL)

ANITA PANDEY v. STATE OF U. P.

2012-09-12

A.K.TRIPATHI

body2012
Arvind Kumar Tripathi, J. 1. Heard leaned counsel for the petitioner, learned counsel for respondent no.5, learned Standing Counsel for the State and perused the record. 2. The present writ petition has been filed with prayer to issue a writ of certiorari quashing the impugned order dated 07.10.2008 passed by the respondent no.3, District Magistrate, Ghazipur, Annexue -4 to the writ petition. Further, to issue a writ of mandamus commanding the respondents not to interfere in the working of the petitioner as Shiksha Mitra at Primary Pathshala Renga, District Ghazipur by which it was held that respondent no.5, who had more experienced than petitioner as instructor/supervisor, would be given preference for appointment on the post of Shiksha Mitra. 3. By interim order dated 26.11.2005, the effect and operation of impugned order dated 07.10.2008 was kept in abeyance. According to learned counsel for the petitioner, petitioner is still working as Shiksha Mitra. 4. The brief facts of the case are that there was an advertisement for selection of Shiksha Mitra in District Ghazipur in various primary school to be selected for the post of Shiksha Mitra. After that the candidates applied for appointment. The petitioner was found eligible on the basis of her quality point mark. She was first in the merit list and obtained 67.4% quality point mark and respondent no.5, Smt.Pushpanjali Pandey, who obtained 51.6% was at Sl.No.4. The petitioner was selected by selection committee on 28.11.2005. The Government Order dated 10.10.2005, was applicable in selection for the post of Shiksha Mitra, which was introduced by the amendment of earlier Government Order dated 01.07.2000. The petitioner and the respondent both have experience of working as instructor/supervisor under Nonformal education scheme. However, since the petitioner has obtained higher quality point marks and she was placed at Sl.No.1, her name was recommended and she was appointed on the post of Shiksha Mitra. She joined her duty in Primary School, Pathshala Renga, District Ghazipur on 05.05.2006 as Shiksha Mitra in L.T. Grade and she is working. The petitioner under went training from 07.07.2006 to 05.08.2006 and thereafter from 20.03.2008 to 04.04.2008 and completed her training. Respondent no.5 was aggrieved with the selection of the petitioner and appointment on the post of Shiksha Mitra filed a representation before the District Magistrate, Ghazipur. The petitioner under went training from 07.07.2006 to 05.08.2006 and thereafter from 20.03.2008 to 04.04.2008 and completed her training. Respondent no.5 was aggrieved with the selection of the petitioner and appointment on the post of Shiksha Mitra filed a representation before the District Magistrate, Ghazipur. Thereafter, writ petition no.48481 of 2007 was filed, which was disposed of finally vide order dated 03.10.2007 with the direction to District Magistrate to decide the representation of respondent no.5. After direction of the High Court, the representation was decided, The impugned order was passed by the District Magistrate on 07.10.2008 considering the subsequent Government Order dated 24.04.2006. According to subsequent Government Order dated 24.04.2006, priority has to be given to those candidates whose work experience of instructor is longer. Hence priority was given to respondent no.5, as her working experience as instructor/supervisor of the Non Formal education programme was longer than the petitioner, hence this petition has been filed. 5. Learned counsel for the petitioner submitted that petitioner as well as respondent no.5 have worked as instructor/supervisor in the non formal education scheme. In view of the Government Order dated 01.07.2000, which was modified and amended by Government Order dated 10.10.2005, the candidates were selected by the selection committee and list was prepared on 28.11.2005 in which petitioner was placed at Sl.No.1 and respondent no.5 at Sl.No.4, because the petitioner secured 51.6% quality point mark, hence petitioner was selected. Subsequently, she joined the establishment. By the impugned order, the District Magistrate had considered the subsequent Government Order dated 24.04.2006. When the petitioner was selected the said Government Order was not in existence and that cannot be given retrospective effect. The selection after 24.04.2006 will be considered, in view of that Government Order dated 24.04.2006. Before the said Government Order the candidates who were working as instructor/supervisor under nonformal education scheme cannot be given priority on the basis of longer priod of working as instructor/supervisor. 6. Learned counsel for the petitioner relied on the judgement of Division Bench of this Court in the case of Km. Rita Yadav Vs. State of U.P.and others, 2007 ( 2) ESC, 788, the judgement of Division Bench of this Court passed in Special Appeal No.46 of 2007, Smt. Kanti Singh Yadav Vs. State of U.P. & others, decided on 15.01.2007.and the judgement of Division Bench of this Court in the case of Parvati Devi Vs. Rita Yadav Vs. State of U.P.and others, 2007 ( 2) ESC, 788, the judgement of Division Bench of this Court passed in Special Appeal No.46 of 2007, Smt. Kanti Singh Yadav Vs. State of U.P. & others, decided on 15.01.2007.and the judgement of Division Bench of this Court in the case of Parvati Devi Vs. State of U.P. and others, 2007( 6) ADJ, 384. It is submitted that in the aforesaid Division Bench decision of this Court in the case of Parvati Devi ( Supra). It was held that the Government Order dated 24.04.2006 does not apply retrospectively. Thus, the vacancy has to be filed up in terms of Government Order dated 10.10.2005 and that the Government Order did not provide priority for a candidate having longer experience. Hence, in view of the judgements, impugned order is liable to be set aside. 7. Learned counsel for the respondents submitted that as per the Government Order dated 24.04.2006 there was clarification, regarding provision of earlier Government Order dated 10.10.2005. Hence said Government Order has to be read with Government Order dated 24.06.2006. The appointment of the petitioner and respondent has to be considered in view of the Government Order, dated 10.10.2005 read with Government Order dated 26.04.2006. Considering the Government Order dated 24.04.2006, the District Magistrate, respondent no.3 has rightly allowed the presentation of the respondent by impugned order dated 07.10.2008, hence the present petition is liable to be dismissed. He relied upon the judgement of Full Bench of this Court in the case of Daya Ram Singh Vs. State of U.P., reported in 2007 LBESR-2-424. It was held that Clause IV, provides first priority to instructor/supervisor who have experience of nonformal education scheme which is correct interpretation of clause IV of Circular dated 10.10.2005. 8. Considered the submission of counsel for the parties. The controversy in the present case is whether the provision of Government Order/circular dated 24.06.2006 will apply with retrospective effect, even in those appointment of Shiksha Mitra ( Friend of Education) who were selected in view of the earlier Government Order dated 10.10.2005 and were appointed. In view of the fact, admittedly, in the present case, the selection committee selected the candidates prepared a list according to merit list and recommend for appointment according to list dated 28.11.2005. In view of the fact, admittedly, in the present case, the selection committee selected the candidates prepared a list according to merit list and recommend for appointment according to list dated 28.11.2005. The petitioner was placed at Sl.No.1 in the merit list, who obtained 67.4% quality point mark and respondent no.5, Smt. Puspanjali Pandey was placed at Sl.No.4, who obtained 51.6 quality point marks. The petitioner and respondent no.5 both have experience of working as instruction/supervisor in Non formal Education Scheme. Hence, according to the Government Order dated 01.07.2000 and subsequent order dated 10.10.2005 by which the earlier Government order was modified, the petitioner was appointed, because she has secured higher quality point mark and was placed at Sl.No.1. Subsequently, Government Order dated 24.04.2006 was issued with modification that while considering the work experience as instructor/supervisor of the non formal education scheme; the preference has to be given to those candidates, who have longer experience than the others. Not only at the time of advertisement of the post, but during selection process as well as when the petitioner no.1 was selected on the post of Shiksha Mitra, subsequent, Government Order dated 24.04.2006 was not in existence. In view of the earlier Government Order she joined as Shiksha Mitra and is working. She also went for training. The contention on behalf of learned counsel for respondent no.5 that she has longer experience as instructor/supervisor of non formal education scheme, hence the impugned order was rightly passed in favour of respondent no.5, rejecting the claim of the petitioner in view of the Government Order dated 24.04.2006, which will be applicable with retrospective effect, is not a correct view. The right accrued in favour of the petitioner, who in view of the provisions, which was in existence was appointed. Hence her appointment cannot be cancelled in view of subsequent Government Order. Subsequent, Government Order dated 24.04.2006 would be applicable prospectively. 9. In case of Km.Rita Yadav ( supra), the Division Bench of this Court held that Government Order dated 24.04.2006 does not apply retrospectively. In case of Daya Ram Singh ( Supra), the Full Bench of this Court,. the question was ( i) what is correct interpretation of clause 4 of the Government circular dated 10.10.2005 issued by the Government of Uttar Pradesh ? In case of Daya Ram Singh ( Supra), the Full Bench of this Court,. the question was ( i) what is correct interpretation of clause 4 of the Government circular dated 10.10.2005 issued by the Government of Uttar Pradesh ? where decision rendered in case Smt. Kanti Singh Yadav ( Supra), decided on 15.01.2007 ( interpreting the said Clause) is based on correct preposition of law," In reply to question no.1, it was held that " the Clause 4, provided first priority to the instructor/supervisor, who are in nonformal scheme. That is correct interpretation of clause 4 of a Government circulat dated 10.10.2005. Regarding second question, it was held " the decision in the of Smt. Kanti Singh Yadav ( Supra) does not lay down correct preposition of law. In the case of Kanti Singh Yadav ( supra), it was held " preference cannot be enforced as a rule of reservation or a rule of complete precedence, as preference can be given only when the claim of the candidates, who are eligible found equal. It is only in such a situation that preference can be used as tilting factor in favour of those candidates, possessing the required decree, ' preference cannot be given in respect of inter se merit or suitability''. 10. Hence, in view of the Government circular dated 10.10.2005, first priority was to be given to the candidates having experience as instructor irrespective of quality point mark. In case of Parvati Devi ( Supra), the decision of Km. Rita Yadav ( Supra) was followed.It was held " G.O. dated 24.04.2006 does not apply retrospectively." 11. In view of the aforesaid discussion, since there is no indication in the subsequent circular dated 24.04.2006 that it would be applicable with retrospective effect. The said circular/Government Order will be operative with effect from 24.004.2006 and as such in the present case, the vacancy of Shiksha Mitra was to be filled in terms of the Government Order/circular dated 10.10.2005. 12. According to the Government Order dated 10.02.2005, first priority has to be given to those candidates, who have experience of work as instructor/supervisor in 'Non formal education scheme'. Since, the petitioner and respondent no.5 both have work experience, of instructor/supervisor of Non formal education scheme then merit has to be considered. 12. According to the Government Order dated 10.02.2005, first priority has to be given to those candidates, who have experience of work as instructor/supervisor in 'Non formal education scheme'. Since, the petitioner and respondent no.5 both have work experience, of instructor/supervisor of Non formal education scheme then merit has to be considered. Admittedly in merit, the petitioner was placed at Sl.No.1, who obtained 67.4% quality point marks, which is higher than the quality point marks of respondent no.5. The petitioner has rightly been appointed on the post of Shiksha Mitra, hence the impugned order dated 07.10.2008 passed by respondent no.3, District Magistrate, Ghazipur, Annexure No.4 to the writ petition is hereby quashed. 13. The petitioner would be entitled for salary of Shiksha Mitra for which period, she was working and for payment of salary in future, as applicable according to the rules. 14. Accordingly, the writ petition is hereby allowed. No order as to costs.