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Orissa High Court · body

2012 DIGILAW 547 (ORI)

Rashmirekha Patra v. State of Orissa

2012-12-14

B.N.MAHAPATRA

body2012
Judgment B.N. Mahapatra, J. These writ petitions have been filed to quash the order dated 09.12.2011 passed under Annexure-6 by opposite party No.1-Commissioner-cum-Secretary, School and Mass Education Department, Odisha, Bhubaneswar, wherein it has been held that petitioners having being disengaged as Education Volunteers working in Alternative Innovative Education (for short ‘AIE’) Centres under the Employment Guarantee Scheme (for short ‘EGS’) their case cannot be considered for engagement as Ganasikshyak under Sarba Sikshya Abhiyan pursuant to Resolution No.3358 dated 16.02.2008 (Annexure-1) of School and Mass Education Department under which only the disengaged Education Volunteers working in EGS Centres have been engaged. Further prayer of the petitioners is for a direction/order to opposite parties to engage them as Ganasikshyak in view of the engagement of similarly situated Education Volunteers and to declare that the Education Volunteers of A.I.E. Centres are eligible to be considered for the post of Ganasikshyak in terms of the Resolution of the Government and to provide all the benefits accrued under the said Scheme as provided to Education Volunteers of EGS Centres. 2. In W.P.(C) No.21156 of 2010, prayer has been made to hold/declare non-inclusion of the Education Volunteers of AIE Centres in the Resolution dated 16.02.2008 of the School and Mass Education Department, Government of Odisha for rehabilitating the said Education Volunteers as Ganasikshyak illegal, unconstitutional and unsustainable in the eye of law. Further prayer is to modify the resolution dated 16.02.2008 by extending the benefit to all Education Volunteers working in AIE Centres at par with the similarly situated persons in EGS Centres and to consider the case of the petitioners for their engagement as Ganasikshyak. 3. Since issues involved in all the writ petitions are similar in nature, they are dealt with together in this common judgment. 4. Petitioners’ case in a nutshell is that they were disengaged as Education Volunteers in the district of Nuapada. Their appointment was made by the competent authority in due process of selection. Accordingly, an agreement was executed between the VEC and the petitioners and they joined on 14.07.2003 in different AIE Centres as Education Volunteers and were disengaged during May, 2007. Since the date of engagement, the petitioners had been discharging their duties till closure of EGS/AIE Scheme. During the service period they have attended different training programmes for imparting better education to the children as per the direction of the authorities. Since the date of engagement, the petitioners had been discharging their duties till closure of EGS/AIE Scheme. During the service period they have attended different training programmes for imparting better education to the children as per the direction of the authorities. After closure of EGS/AIE Scheme, the State Government in School and Mass Education Department introduced a Resolution dated 16.02.2008, wherein it is stipulated that the disengaged Education Volunteers will be rehabilitated as Ganasikshyak under Sarba Sikshya Abhiyan in different schools of the State. Accordingly, to implement the Scheme, the State Project Director, OPEPA issued clarification dated 05.04.2008 (Annexure-2) to the various queries of the Collectors relating to rehabilitation of Education Volunteers, who can be appointed as Ganasikshyak. It is clarified that in procedure No.1, Education Volunteers of all EGS/AIE guidelines of the Government of Odisha, in School and Mass Education Department shall be eligible for rehabilitation as Ganasikshyaks subject to satisfaction of other norms. As per the instruction of the Government in School and Mass Education Department, all the District Offices including the District Office, Nuapada prepared a list of status report of disengaged Education Volunteers for engagement of Ganasikshyaks and the petitioners have been placed in the said list. From the said list, Education Volunteers, who were working in EGS Centres, have been rehabilitated as Ganasikshyaks but the petitioners were not rehabilitated as Ganasikshyaks on the ground that they were not working in EGS Centres but working in AIE Centres. Collector, Nuapada submitted his detailed report to opposite party No.1 on 09.06.2008 for consideration of petitioners’ case but no action has been taken till filing of the present writ petitions despite several letters written to opposite parties 3 and 4. District Project Coordinator, SSA, Nuapada on 13.04.2010 had issued a letter to opposite party No.2 furnishing detailed information along with a list of Education Volunteers, who were working in AIE Centres and the same is pending with the Government for decision. Since no action was taken by the authority, petitioner No.1 [in W.P.(C) No.1716 of 2012] filed writ petition bearing W.P.(C) No.11081 of 2011 which was disposed of on 10.05.2011 directing opposite party No.1 to consider the case of the petitioner. Pursuant to such direction of this Court, opposite party No.1 vide impugned order dated 09.12.2011 (Annexure-6) rejected the claim of the petitioners. 5. Mr. Pursuant to such direction of this Court, opposite party No.1 vide impugned order dated 09.12.2011 (Annexure-6) rejected the claim of the petitioners. 5. Mr. K.P. Mishra, learned counsel appearing for the petitioners submitted that rejection of petitioner’s claim vide order dated 09.12.2011 under Annexure-6 is illegal, arbitrary, discriminatory and unconstitutional in nature. Most of the similarly situated Education Volunteers working in AIE Centres have already been engaged in different districts but petitioners are ignored illegally. Such action of opposite parties is violative of Articles 14 and 16 of the Constitution of India as the petitioners have fundamental right to get the said benefit. Sheer discrimination created by opposite parties among one class of Education Volunteers is not permissible under law. As per the resolution dated 16.02.2008 of School and Mass Education Department opposite parties issued engagement order only to Education Volunteers who were working in EGS Centres whereas the petitioners although working simultaneously along with Education Volunteers of EGS Centres and disengaged on the same date, their cases have been ignored. After abolition of NFE Scheme, Government introduced EGS Scheme in the year 2002. Accordingly, petitioners were engaged as Education Volunteers as per the order of the authorities. Some of the Education Volunteers were engaged in EGS Centres and some of Education Volunteers were engaged in AIE Centres. Ninety-one numbers of AIE Centres were opened in Nuapada district during the year 2003. Sixty-eight numbers of AIE centres including the petitioners’ centres were closed during May, 2007 and twenty-three AIE Centres were closed in the year 2008. According to Rules, all the Centres should have been converted to EGS Centres/Primary Schools. Schools were functioning as per the formal school time, i.e., 10:00 AM to 4:00 PM. Petitioners in the mean time have gathered much experience in the filed of teaching. There is no difference between Education Volunteers of EGS Centres and AIE Centres. Both the Centres are functioning under one Scheme by the Government and they are similar in all respects. They attended different types of programmes for imparting different education to children as per direction of authorities. The State Government issued another resolution dated 03.07.2008 on the basis of which all the retrenched persons would be considered as Ganasikshyaks. Non-consideration of the case of the petitioners is clear violation of the Resolution of the Government as well as constitutional provisions under Articles 14 and 16 of the Constitution of India. The State Government issued another resolution dated 03.07.2008 on the basis of which all the retrenched persons would be considered as Ganasikshyaks. Non-consideration of the case of the petitioners is clear violation of the Resolution of the Government as well as constitutional provisions under Articles 14 and 16 of the Constitution of India. 6. In W.P.(C) No.32955 of 2011, opposite party No.4-District Project Coordinator, SSA, Nuapada has filed counter affidavit on behalf of opposite parties 1 to 3. Referring to the said counter affidavit, learned Standing Counsel for School and Mass Education Department submitted that the claim of the petitioners in the said writ petitions is contradictory to each other. On the one hand, the petitioners seek direction for their absorption as Ganasikshyaks as per the Resolution dated 16.02.2008 in School and Mass Education Department and on the other, they challenge the said Resolution for non-inclusion of Education Volunteers working in AIE Centres. Therefore, the writ petition is liable to be dismissed. Petitioners were initially employed as Education Volunteers in AIE Centres to impart education to children of migrant people, children engaged in household work, child labour, urban deprived children, children deprived due to social and religious reasons, adolescent girls etc. As per the guideline, the activities of the AIE Centres are meant for mainstreaming the students where even if there is schooling facility but they are out of school for different reasons. EGS Centres were established where there was a demand of community and no Primary School existed within one kilometre radius in the habitation and basing on the demand of the community EGS Centres were established if at least 25 children are available in the community. Subsequently, the Primary School is established by the Government in that location by upgrading the EGS Centres where continuous primary education was provided to the children of that locality, whereas the AIE Centres were not providing continuous education. It clearly depends on the availability of pupils. While the matter stood thus, Government in School and Mass Education Department passed the resolution dated 16.02.2008 after careful consideration of problems of Education Volunteers under the EGS Scheme and decided to rehabilitate Education Volunteers in EGS Centres who have been disengaged or facing disengagement under the EGS Scheme as Ganasikshyak under Sarba Sikshya Abhiyan. But the aforesaid resolution did not contemplate inclusion of Education Volunteers working in AIE Centres. But the aforesaid resolution did not contemplate inclusion of Education Volunteers working in AIE Centres. It was exclusively meant for Education Volunteers working in EGS Centres and accordingly the present petitioners who continued as Education Volunteers in the AIE Centres till their closure cannot be absorbed as Ganasikshyaks in accordance with the above said Resolution. 7. On the rival contentions, the questions that fall for consideration by this Court are as follow:- (i) Whether benefit provided under Resolution dated 16.02.2008 to Education Volunteers working in EGS Centres should be extended to the Education Volunteers working in AIE Centres? (ii) Whether opposite party No.1-Commissioner-cum-Secretary, School and Mass Education Department is justified to hold that petitioners who are working as Education Volunteers in AIE Centres are not entitled to be engaged as Ganasikshyak in terms of Resolution No.3358/SME dated 16.02.2008 of School and Mass Education Department according to which only Education Volunteers working in EGS Centres are to be rehabilitated as Ganasikshyaks under Sarba Sikshya Abhiyan? 8. Since both the questions are inter-linked, they are dealt with together. 9. Undisputed facts are that the petitioners were appointed as Education Volunteers in AIE Centres after due process of selection and agreements were executed between the VEC and the petitioners. They were engaged on 14.07.2003 in different AIE centres as Education Volunteers and disengaged in May, 2007. They have attended different programmes for imparting different education to the children as per the direction of the authorities. The Resolution dated 16.02.2008, for the purpose of universalization of Elementary Education through EGS Scheme, which is an integral part of Sarba Sikshya Abhiyan, was operationalized in Odisha from the year 2001-02. Due to upgradation of EGS Centres to regular Schools and for various reasons, the Education Volunteers engaged in such EGS Centres have been disengaged. Government of Odisha after careful consideration of the Education Guarantee Scheme decided to rehabilitate Education Volunteers working in EGS Centres, who have been disengaged or facing disengagement under the EGS Scheme. As per the said Scheme, such disengaged Education Volunteers would be rehabilitated as Gana Sikshyaks under Sarba Sikshya Abhiyan. Pursuant to such Resolution, opposite parties are rehabilitating only Education Volunteers working in EGS Centres and they are not absorbing Education Volunteers working in AIE Centres. Petitioners’ case is that as per EGS/AIE guideline, Education Volunteers were engaged in the State in both the Centres, i.e., EGS Centres and AIE Centres. Pursuant to such Resolution, opposite parties are rehabilitating only Education Volunteers working in EGS Centres and they are not absorbing Education Volunteers working in AIE Centres. Petitioners’ case is that as per EGS/AIE guideline, Education Volunteers were engaged in the State in both the Centres, i.e., EGS Centres and AIE Centres. Education Volunteers were working in both the Centres with same remuneration and terms and conditions of service. Both AIE/EGS Centres are Government Centres opened as per the same guideline and created by one resolution from the beginning till closure of the Scheme. The source of recruitment is one. Therefore, they cannot be treated differently. As it appears, non-inclusion of Education Volunteers working in AIE Centres for engagement as Ganasikshyak under Sarba Sikshya Abhiyan in the Resolution dated 16.02.2008 is an omission. Otherwise also, non-inclusion of all the Education Volunteers working in AIE Centres in Resolution dated 16.02.2008 amounts to violation of rights guaranteed under Articles 14 and 16 of the Constitution of India. The sole contention of opposite parties is that since, according to Resolution dated 16.02.2008, the disengaged Education Volunteers working in EGS Centres are only to be rehabilitated, the case of Education Volunteers working in AIE Centres cannot be considered. 10. At this juncture, it is necessary to refer to letter dated 05.04.2008 (Annexure-2) addressed by State Project Director, OPEPA to Commissioner-cum-Secretary to Government, School and Mass Education Department, Odisha. In the said letter referring to Resolution No.3358/SME dated 16.02.2008, several suggestions have been given for rehabilitation of Education Volunteers of erstwhile EGS Centres. As per Procedure-1, Education Volunteers of all EGS Centres approved and operationalised as per the norms of EGS/AIE Guidelines of Government of Odisha, School and Mass Education Department shall be eligible for rehabilitation as Gana Sikshyak subject to satisfaction of other norms. Thus in Procedure-1, it was suggested that the Education Volunteers working in all EGS Centres approved and operationalised as per the norms of EGS/AIE Guidelines shall be eligible for rehabilitation as Ganasikshyak. As per paragraph-3 of letter dated 09.06.2008 (Annexure-4) written by Collector-cum-Chairperson, DPEP/SSA, Nuapada to the Under Secretary to Government, School and Mass Education Department, Odisha, the list of selected Education Volunteers, who were engaged in AIE Centres, was duly approved by District EGS Committee. 11. As per paragraph-3 of letter dated 09.06.2008 (Annexure-4) written by Collector-cum-Chairperson, DPEP/SSA, Nuapada to the Under Secretary to Government, School and Mass Education Department, Odisha, the list of selected Education Volunteers, who were engaged in AIE Centres, was duly approved by District EGS Committee. 11. As per paragraph 2 of letter dated 13.04.2010 issued by the District Project Coordinator, SSA, Nuapada to the Assistant Director (Access), OPEPA, Bhubaneswar the condition of engagement of Education Volunteers of AIE centres is the same as Education Volunteers of EGS Centres. They were given same remuneration as EVs of EGS Centres. All AIE Centres were functioning as per the formal School time. 12. The stand that similarly situated persons in other districts have been engaged as Ganasikshyaks under SSA is not disputed by opposite parties. It is nobody’s case that both Centres are not functioning under the same Scheme. It is also not disputed that their process of recruitment and rehabilitation etc. are same. Appointment was made as per the decision taken by the competent authority. Both Education Volunteers working in EGS/AIE Centres were disengaged pursuant to Resolution dated 16.02.2008. It appears that the Government after careful consideration of the case of the Education Volunteers under EGS Scheme decided to rehabilitate them in EGS Centres, who have been disengaged or facing disengagement under EGS Scheme. It is not understood as to when the Education Volunteers working in EGS Centres as well as AIE Centres were disengaged and they were facing problems as to why Government has issued Resolution dated 16.02.2008 only considering the case of Education Volunteers working in EGS Centres who have been disengaged but did not consider the case of Education Volunteers working in AIE Centres. In the Counter, no valid reason has been assigned as to why the case of Education Volunteers working in AIE Centres was not considered. The only stand taken by the opposite party No.1-Commissioner-cum-Secretary, School and Mass Education Department, Odisha, Bhubaneswar is that in view of Resolution dated 16.02.2008, the case of Education Volunteers working in AIE Centres could not be considered. Mr.Pandey has not satisfactorily met the allegation of the petitioners that the action of opposite parties is a clear case of discrimination and violates the constitutional mandates of equality enshrined in Articles 14 and 16 of the Constitution of India. 13. Mr.Pandey has not satisfactorily met the allegation of the petitioners that the action of opposite parties is a clear case of discrimination and violates the constitutional mandates of equality enshrined in Articles 14 and 16 of the Constitution of India. 13. In the present case, no valid and cogent reason has been assigned by learned Standing Counsel to justify the Resolution dated 16.02.2008 passed by the Government of Odisha in School and Mass Education Department only in rehabilitating disengaged Education Volunteers working under EGS Centres and ignoring the case of similarly situated persons in AIE Centres. 14. The fact of the case decided by this Court on 03.08.2010 in W.P. (C) No. 20566 of 2009 is not similar to the fact of the present case. Apart from that, there is hardly any detailed discussion about the fact and scenario involved in the aforesaid cases. Therefore, the decision in that case is not applicable to the case of the present petitioners. 15. In the fact situation, this Court directs the State Government to consider the matter afresh and pass appropriate order within a period of two months from today taking into account various stands taken by the petitioners and observations of this Court made above and the fact that different yardsticks have been followed in different districts. 16. So far the order passed under Annexure-6, Opposite party No.1 only followed the resolution dated 16.02.2008 passed by the Government, and rejected the representations of the petitioners. Therefore, in the circumstances, the order passed by opposite party No.1 (Annexure-6) is quashed and he is directed to reconsider the case of the petitioners in the light of the decision that would be taken by the Government pursuant to this judgment. 17. In the result, the Writ Petitions are allowed with aforesaid observation/directions.