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2015 DIGILAW 229 (ALL)

SHRAWAN KUMAR v. STATE OF U. P.

2015-02-05

YASHWANT VARMA

body2015
JUDGMENT Hon'ble Yashwant Varma,J. I have heard learned counsel for the petitioner, learned standing counsel for the State respondents and learned counsel for the Basic Shiksha Parishad and District Basic Education Officer Muzaffarnagar. Since these writ petitions stemmed from the same controversy, they are taken up together and are being disposed of by this common judgement. Writ Petition No. 48943 of 2007 laid challenge to an order dated 17.07.2007, passed by the District Basic Education Officer Muzaffarnagar, commanding the respondents to recover the honorarium paid to the petitioner after the annulment of his appointment as a Shiksha Mitra. It appears that during the pendency of the aforesaid writ petition, the respondents filed an affidavit in which it was disclosed that the Department of Basic Education vide its order dated 04.04.2006 had held the appointment of the petitioner to be invalid and accordingly required the respondents to bring it to an end. Faced with the above situation, the petitioner had filed an amendment application dated 14.12.2008, seeking to assail the aforesaid order also. This application remained pending and was allowed on 28.01.2015 whereafter both the writ petitions were taken up for final disposal. Writ Petition No. 24675 of 2009 challenged the order dated 13.04.2009, passed by the District Magistrate holding that the appointment of the petitioner as a Shiksha Mitra was illegal and invalid. This order upheld the continuance of one other lady Shiksha Mitra appointed in the institution in question and further provided that all honorarium paid to the petitioner post 04.04.2006 be recovered from the President and Secretary of the Gram Shiksha Samiti concerned. From the above narration of facts, it is apparent that insofar as the challenge of the petitioner to the order of recovery dated 17.07.2007 is concerned (and as assailed in Writ Petition No. 48943 of 2007), the same has become infructuous. The said writ petition, therefore, survives only to the extent of challenge laid by the petitioner to the order dated 04.04.2006. The facts relevant for disposal of these writ petitions fall within a narrow compass. It is the case of the petitioner that as per the relevant Delimitation Order, the office of Pradhan of Gram Panchayat, Barkata, Block Budhana District Muzaffarnagar came to be reserved for a woman candidate. One Smt. Naresh Devi was subsequently elected as Pradhan of the said Gram Panchayat. It is the case of the petitioner that as per the relevant Delimitation Order, the office of Pradhan of Gram Panchayat, Barkata, Block Budhana District Muzaffarnagar came to be reserved for a woman candidate. One Smt. Naresh Devi was subsequently elected as Pradhan of the said Gram Panchayat. It is then averred that the Gram Shiksha Samiti for the aforesaid village came to be constituted on 03.07.2001. In 2002, it is stated that, a post of Shiksha Mitra fell vacant in the primary school of the village and accordingly a need arose for initiating a process for selection of a woman Shiksha Mitra in accordance with the provisions of the Government Order dated 01.07.2000. It would be relevant to note here that in terms of the aforesaid Government Order, in villages where consequent to delimitation a constituency stood reserved for a woman candidate, the Shiksha Mitra to be appointed in the Primary School of the Village would also be a lady candidate. The said Government Order, after elaborating on the appointment process, provisioned that the Gram Panchayat would make a public announcement of the vacancies sought to be filled up and invite applications from interested parties. The Government Order envisaged that 10 days time would be allowed to the interested applicants to apply for selection and appointment as Shiksha Mitra, whereafter the Gram Shiksha Samiti would make the appointment subject to the approval of the State respondents. This very Government Order further provided that in case a suitable candidate is not available and/or if in case the applications from eligible candidates are not received by the Gram Panchayat, then in such a situation, candidates from the Nyay Panchayat level may be selected for appointment as Shiksha Mitra. According to the petitioner, when the concerned Gram Panchayat did advertise the vacancies and invited the applications from interested parties, no woman candidate appeared nor did they apply for appointment. Consequently and in light of the provisions of the Government Order dated 19.11.2001, the petitioner who had applied, after due scrutiny, was appointed by the Gram Panchayat on 31.05.2002. According to the petitioner, when the concerned Gram Panchayat did advertise the vacancies and invited the applications from interested parties, no woman candidate appeared nor did they apply for appointment. Consequently and in light of the provisions of the Government Order dated 19.11.2001, the petitioner who had applied, after due scrutiny, was appointed by the Gram Panchayat on 31.05.2002. In this connection, the learned counsel for the petitioner has invited the attention of the Court to the notes recorded by the Secretary, Basic Primary School, Barkata (as appearing at Annexures-2 and 3 to the writ petition) to contend that his appointment was effected on account of the absence of any female candidates having applied for appointment. It appears that the appointment of the petitioner was renewed for the sessions 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08 on the basis of the proposals made by the Gram Shiksha Samiti concerned. It, however, appears that the District Basic Education Officer vide his communication dated 04.04.2006 drew the attention of the Gram Shiksha Samiti to the issue that the petitioner had been illegally selected as a Shiksha Mitra especially when the constituency in question had been reserved for a woman candidate and accordingly called upon the Samiti to terminate the appointment of the petitioner. This view taken by the District Basic Education Officer was again reiterated in his communication dated 17.07.2007 and it was consequently required of the respondents to recover the honorarium illegally paid to the petitioner for the period post 04.04.2006. It was in the above background that Writ Petition 48943 of 2007 came to be filed. To complete the narration of facts, it would be apposite to mention here that this Court by order dated 08.10.2007 passed on the writ petition aforementioned was pleased to stay all recoveries sought to be made from the petitioner pursuant to the order dated 17.07.2007. It was during the pendency of the aforesaid writ petition, that the District Magistrate passed the order dated 13.04.2009 impugned in Writ Petition No. 24675 of 2009. Briefly stated this order recorded that the petitioner had been illegally appointed on the post of Shiksha Mitra. It was further recorded that in the year 2004-05, pursuant to the proposal of Gram Shiksha Samiti, one Smt. Dolly came to be appointed on the second vacancy and that shortly thereafter one Km. Jyoti also came to be appointed as a Shiksha Mitra. It was further recorded that in the year 2004-05, pursuant to the proposal of Gram Shiksha Samiti, one Smt. Dolly came to be appointed on the second vacancy and that shortly thereafter one Km. Jyoti also came to be appointed as a Shiksha Mitra. Consequently the District Magistrate found that three Shiksha Mitras had come to be appointed in the Primary School in question against the sanctioned strength of two Shiksha Mitras. In light of the aforesaid facts, the District Magistrate permitted the continuance of Smt. Dolly and annulled the appointment of Km. Jyoti. It was further provided that all honorarium paid to the petitioner post 04.04.2006 be recovered from the Chairman and Secretary of the Samiti concerned. Learned counsel for the petitioner has rested his case primarily on the provisions of the Government Order dated 19.11.2001 to contend that there was no illegality in his appointment. He submitted that the Government Order in question clearly applied and consequently in the absence of any eligible female candidate having applied, the Gram Shiksha Samiti was well within its right to offer appointment to the petitioner. He therefore submitted that the very premise on which the orders dated 04.04.2006 and 13.04.2009 are based is incorrect. Learned counsel appearing for the contesting Basic Shiksha Adhikari, on the other hand, submitted that the Government Order dated 19.11.2001 did not in any manner supplement or over ride the Government Order dated 01.07.2000. He submitted that the Government Order dated 19.11.2001 would apply only when no female candidate was available either at the Gram Panchayat level or the Nyaya Panchayat level. He submitted that the Respondent Shiksha Samiti having failed to strictly follow the procedure prescribed under the Government Order dated 1.7.2000, the appointment of the Petitioner could not be saved. He further submitted that the record of the selection process shows that there was no wide spread publicity and that the appointment of the petitioner was effected without waiting for the 10 days period provided under the Government Order dated 01.07.2000. He urged that the continuance of the Petitioner despite the order dated 4.4.2006, clearly established collusion between the Petitioner and the members of the Shiksha Samiti. He submits that upon an over all conspectus of the facts of this case, the petitioner is consequently not entitled to any relief. He urged that the continuance of the Petitioner despite the order dated 4.4.2006, clearly established collusion between the Petitioner and the members of the Shiksha Samiti. He submits that upon an over all conspectus of the facts of this case, the petitioner is consequently not entitled to any relief. Undisputedly, the repository of the scheme for appointment of Shiksha Mitras in Primary Schools is the Government Order dated 01.07.2000. This Government Order clearly provides that where consequent to delimitation, a particular constituency becomes reserved in favour of a woman candidate, only a female Shiksha Mitra could be appointed. This very Government Order further takes care of a situation where an eligible female candidate either does not apply or where one is not found at the Gram Panchayat level. In such an eventuality as per this Government Order, an appropriate eligible candidate is to be invited and shortlisted from the Nyaya Panchayat level. Having heard learned counsel for the contesting parties, this Court holds that the Government Order dated 19.11.2001 cannot be read as supplanting or overriding the parent Government Order of 1.7.2000. Not only does the language of the said Government Order not justify nor sanction such a conclusion being arrived at, on the principles of harmonious construction too, this Court is constrained not to read it in such a fashion. In the opinion of this Court, the provisions made in the Government Order dated 19.11.2001 is in the nature of a "last resort". It would, in the opinion of this Court, come into play only where no eligible female candidate is found either at the Gram Panchayat level or the Nyay Panchayat level. The view that this Court takes is consistent with the principles of harmonious construction and it is only when the two Government Orders are interpreted in such manner that there would be no collission between them and both would therefore survive and serve their underlying purposes. In light of the above conclusion to which the Court arrives at, it is apparent that the appointment of the petitioner can neither be saved nor sustained. The Gram Shiksha Samiti when it found that no eligible female candidate was coming forwarded was obliged to undertake an exercise to earmark and select a female candidate from the Nyay Panchayat level. In light of the above conclusion to which the Court arrives at, it is apparent that the appointment of the petitioner can neither be saved nor sustained. The Gram Shiksha Samiti when it found that no eligible female candidate was coming forwarded was obliged to undertake an exercise to earmark and select a female candidate from the Nyay Panchayat level. It was only in case of a failure to find an eligible candidate at the level of the Nyay Panchayat that a male candidate could have been appointed as a Shiksha Mitra in the Primary School concerned in accordance with the provisions of the Government Order dated 19.11.2001. From the records, it is further evident that despite the unambiguous direction of the District Basic Shiksha Adhikari, requiring the Gram Shiksha Samiti to terminate the services of the petitioner, the Samiti continued the appointment of the petitioner beyond 04.04.2006. It was in the above light that the order dated 17.07.2007 came to be passed requiring the respondents to recover the honorarium paid to the petitioner. This, however, as noticed herein above, has paled into insignificance in light of the subsequent order passed by the District Magistrate dated 13.04.2009 directing recovery of the honorarium paid to the petitioner post 04.04.2006 to be effected from the President and Secretary of the Gram Shiksha Samiti concerned. In view of the aforesaid facts, this Court is of the opinion that the challenge to the impugned orders dated 04.04.2006 and 13.04.2009 are not liable to be sustained. Accordingly both the writ petitions are liable to be and are accordingly dismissed. ——————