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2013 DIGILAW 585 (ALL)

SANJU DEVI v. STATE OF U. P.

2013-02-20

A.P.SAHI

body2013
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Prabhakar Dubey, learned counsel, for the petitioner, Sri Ashok Kumar Singh, learned counsel, for the respondent Nos. 2 and 3, Sri Anuj Kumar, learned counsel, for the respondent No. 4 and Sri Kushwaha, learned counsel, for the respondent No. 5. 2. After the matter was heard at length, Sri Singh has produced two letters; one, which was addressed to the Speaker of the Assembly and the other which is a note put up by the District Basic Education Officer, Siddhartha Nagar before the District Magistrate on which orders have been passed on 20th January, 2013. 3. Learned counsel for the parties have consented to the final disposal of this writ petition at this stage as none of the learned counsel for the respondents propose to file any counter-affidavit. 4. This matter pertains to the appointment of a Shiksha Mitra in Primary School, Hata Khas, District Siddharth Nagar that had earlier engaged the attention of the authorities. This dispute is related to the qualification of the respondent No. 5 and the corresponding claim of the petitioner for being appointed on the said post. 5. vide order dated 6th January, 2009, the District Basic Education Officer had called upon the Assistant Basic Education Officer, Block Bansi to submit his report for the purpose of holding fresh selections. While passing the said order, the Basic Education Officer had categorically mentioned therein that the appointment of the Respondent No. 5 had been cancelled and she had also been called upon to face recovery of the amount paid to her together with interest. 6. It appears that Writ Petition No. 1331 of 2010 was filed by the petitioner which was disposed of with a direction to the District Magistrate to decide the claim of the petitioner. The District Magistrate vide order dated 16th March, 2010 came to the conclusion that in view of the dispute between the parties, fresh selections should be held and accordingly, the authority should proceed for holding a fresh selection of Shiksha Mitra in the institution. It was also held that Kalindi Pandey can be recognized for appointment but in the operative part of the order, a direction was issued for holding fresh selections. 7. Neither the order dated 6.1.2009 nor the order dated 16.3.2010 appears to have been challenged and they continue to exist. 8. It was also held that Kalindi Pandey can be recognized for appointment but in the operative part of the order, a direction was issued for holding fresh selections. 7. Neither the order dated 6.1.2009 nor the order dated 16.3.2010 appears to have been challenged and they continue to exist. 8. In between, the respondent Kalindi Pandey appears to have approached the District Magistrate through the Speaker of the Vidhan Sabha, Sri Mata Prasad Pandey, who passed an order on 7.11.2012 directing the District Magistrate Sidhrtha Nagar to enquire into the matter and to consider engagement of Smt. Kalindi Panday as Shiksha Mitra. Thereafter the District Magistrate appears to have called for a report and the District Basic Education Officer submitted the same on 28.12.2012. 9. The District Magistrate passed an order dated 20.1.2003 that since the claim of Kalindi Pandey is not in relation to a new appointment, therefore, the Government order dated 2nd June, 2010, whereby the scheme of appointment of Shiksha Mitra has been abandoned, would not apply. 10. It appears that on this process having been adopted, the impugned order has been passed on 30rd January, 2013 by the District Basic Education Officer appointing Kalindi Pandey as Shiksha Mitra in the institution in question taking the directions of the District Magistrate to be binding. 11. The petitioner has assailed this order contending that so long as the orders dated 6.1.2009 and 16.3.2010 continue to stand, fresh selections had to be held and the Respondent No. 5 could not have been straightway appointed on the basis of such recommendations about which a reference has been made hereinabove. He submits that the entire procedure, adopted by the respondents, is erroneous and, therefore, the impugned order deserves to be quashed. 12. Sri Ashok Kumar Singh, learned counsel, for the Basic Education Officer and the Parishad has invited the attention of the Court to these orders and directions issued to contend that so far as the claim of Kalindi Pandey is concerned, that consideration has to be seen in the light of the orders passed earlier. He further submits that the District Magistrate has only passed an order to the effect that the Government order will not apply to any previous appointments. 13. He further submits that the District Magistrate has only passed an order to the effect that the Government order will not apply to any previous appointments. 13. Sri Singh has, however, been unable to explain as to how the said order of the District Magistrate has been treated to be an order for appointing Kalindi Pandey. 14. Sri Kushwaha has vehemently supported the stand taken by the authorities and he contends that the continuance of Kalindi Pandey was still under consideration and was subject to an inquiry, therefore, the District Magistrate adopted the correct procedure by calling for a report from the Basic Shiksha Adhikari passing appropriate orders. 15. In his submission, the re-engagement of the Respondent No. 5 is justified and in accordance with law. 16. Having heard learned counsel for the parties and having considered the aforesaid submissions, the entire process of the re-engagement of Respondent No. 5 is a clear act of malice in law. The Basic Education Officer has completely overlooked the earlier orders dated 6.1.2009 and 16.3.2010. Not only this, the direction of the Speaker of the Assembly was only to get the matter enquired into before engaging the Respondent No. 5. The inquiry which has been made by the Basic Education Officer resulted in an order of the District Magistrate which is only to the effect that the Government Order dated 2.6.2010 will not apply to previous appointments. 17. This, in my opinion, does not amount to an order or direction to appoint the Respondent NO. 5 once again which appointment has already been cancelled earlier. 18. In the aforesaid circumstances, the impugned order dated 30.1.2013, passed by the Basic Education Officer, has no legal basis and is unsustainable. The same is hereby quashed. The writ petition is allowed. 19. The Basic Education Officer shall proceed to pass a fresh order and shall take into account that the entire scheme of appointing Shiksha Mitra that has already been abandoned by the State Government vide Government Order dated 2nd June, 2010. ——————