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2015 DIGILAW 627 (ALL)

MOOL CHANDRA v. STATE OF U. P.

2015-03-30

D.Y.CHANDRACHUD, MANOJ KUMAR GUPTA

body2015
JUDGMENT By the Court.—The appellant was appointed as a Shiksha Mitra in 2006 and continued to work until 2009 in the Basic Primary School, Barahar, Block Bidhuna, District Auraiya. In 2009, a First Information Report was registered against the appellant as Case Crime No 109 of 2009 under Sections 302 and 307 of the Penal Code read with Sections 147, 148 and 149. On 22 November 2012, the appellant was acquitted by the Additional District and Sessions Judge, Auraiya. According to the appellant, he thereafter approached the Village Education Committee and a proposal was made in his favour by the Head Master and Secretary. A recommendation was made to the District Basic Education Officer on 20 February 2013. The appellant thereupon represented his case. The second respondent informed the District Basic Education Officer on 26 July 2013 that by a Government Order dated 2 June 2010, the appointment of Shiksha Mitras had been discontinued. Aggrieved, the appellant moved a writ petition which was dismissed by the impugned judgment and order of the learned Single Judge dated 1 September 2014. 2. The basic appointment of a Shiksha Mitra was of a contractual nature. The nature of appointment was elucidated in the judgment of a Full Bench of this Court in Km Sandhya Singh v. State of U.P., 2013 (7) ADJ 1 (FB), where it was held as follows: “It could not be disputed by the petitioners that the scheme for appointment of Shiksha Mitra came into being through the Government orders i.e. executive instructions. To put it differently, the petitioners’ appointment/selection is contractual appointment as Shiksha Mitra. Meaning thereby, there is no statutory backing to the petitioners’ claim. The petitioners’ argument proceeds on the footing that the post of Shiksha Mitra is a civil post and is governed by the Principle of statutory service rules. The scheme itself provides that a person shall be allowed to function as Shiksha Mitra under a contract for a fixed period which will come to an end on 31st of May of the next year. No honorarium shall be payable for the month of June. The scheme shows that it will commence in the month of July of each year and will end on 31st of May i.e. for eleven months. No honorarium shall be payable for the month of June. The scheme shows that it will commence in the month of July of each year and will end on 31st of May i.e. for eleven months. By modification it has been provided that if nothing is there against a person he may continue as Shiksha Mitra for the next academic session, subject to receiving a short refresher training. All this cumulatively shows that the tenure of Shiksha Mitra is a fixed term tenure, maximum up to the period of eleven months which, of course, in view of the subsequent amendments by the Government Order can be renewed for subsequent academic sessions. Having noticed the nature of working of Shiksha Mitra as envisaged in the Government orders, to which there appears to be no quarrel by the petitioners, if the Government has decided to discontinue the scheme any further by the Government order dated 2nd of June, 2010, the petitioners have hardly any right for the enforcement of which a writ under Article 226 of the Constitution of India can be issued.” 3. After the enforcement of the Right of Children to Free and Compulsory Education Act, 2009, the State Government took a policy decision on 2 June 2010 to discontinue fresh appointments of Shiksha Mitras. The learned Single Judge, in view of the decision of the Full Bench, held that no fresh appointment could be made to the post of Shiksha Mitra and dismissed the writ petition, leaving it open to the appellant to pursue such remedy as is available in law. 4. The submission which has been urged on behalf of the appellant is that the decision of the Full Bench would have no application since the appellant was not engaged for the first time after June 2010 but had already been engaged in 2006. Moreover, it was submitted that the appellant continued to work until 2009 when he was terminated, after which he was not engaged. Hence, it was submitted that in view of the acquittal of the appellant in the criminal case, the learned Single Judge ought to have allowed the writ petition by granting a mandamus directing the respondents to permit the appellant to join on the post of Shiksha Mitra in the Basic Primary School. According to the appellant, the post on which he was working is still vacant. 5. According to the appellant, the post on which he was working is still vacant. 5. At the outset, it would be necessary to note that the acquittal of the appellant in the criminal case by the Additional District and Sessions Judge on 22 November 2012 was not a clean or honourable acquittal. The conclusion which has been arrived at by the Additional District and Sessions Judge, Auraiya is as follows: “vfHk;kstu i{k }kjk ijhf{kr djk;s x;s rF; ds lkf{k;ksa ftuesa eqdnek okfnuh ih0MCyw0&3 Lo.kZyrk o ih0MCyw0&1 pqVSgy lqfer xqIrk us viuh eq[; ijh{kk esa vfHk;kstu dFkkud dk leFkZu fd;k gS fdUrq ftjg esa vfHk;kstu dFkkud dk leFkZu ugh fd;k gS vr% muds c;ku fojks/kkHkk"kh gksus ds dkj.k lansgkLin gS tcfd lk{khx.k ih0MCyw0&4 vfer] ih0MCyw0&5 dq0 uwru xqIrk] ih0MCyw0&6 jsuw ,oa ih0MCyw0&7 Jherh esudk tks iw.kZ:i ls i{knzksgh ?kksf"kr gks x;s gS ftUgksaus vfHk;kstu dFkkud dk leFkZu ugh fd;k vkSj vius vius c;kuks esa Li"V :i ls dgka gS fd eqfYteku }kjk tku ls ekjus dh fu;r ls reaps ls xksyh o ykBh ekjdj lqfer xqIrk dks pksVs ugh igqWpkbZ vkSj u gh muds firk fnus'kpUnz xqIrk dks tku ls ekjus dh fu;r ls reaps ls xksyh o ykBh ekjdj gR;k dh rFkk muds }kjk ?kVuk dkfjr djus okys cnek’kks dks igpkuus ls Hkh bUdkj fd;k x;kA” 6. The above extract makes it clear that the Additional District and Sessions Judge found that two of the witnesses, PW-3 and PW-1, who had supported the case of the prosecution in the examination-in-chief, had failed to do so in the cross-examination, as a result of which their evidence was not free from doubt. Moreover, PW-4, PW-5, PW-6 and PW-7 were declared as hostile and had not supported the case of the prosecution. It was on this basis that the appellant was acquitted. 7. Now, it is in this background that the Court must assess whether the judgment of acquittal would entitle the appellant to a mandamus to the effect that he should be allowed to rejoin on the post of Shiksha Mitra. First and foremost, the engagement of the appellant as a Shiksha Mitra was purely contractual and was not a recruitment to a civil post or, for that matter, a post under the State. This has been laid down in the Full Bench judgment where the nature of appointment has been considered. First and foremost, the engagement of the appellant as a Shiksha Mitra was purely contractual and was not a recruitment to a civil post or, for that matter, a post under the State. This has been laid down in the Full Bench judgment where the nature of appointment has been considered. Undoubtedly, the learned counsel appearing on behalf of the appellant is correct when he submits, as a matter of fact, that the appellant was not recruited for the first time after 2 June 2010 when the engagement of Shiksha Mitras by the State was discontinued. The issue, however, is whether the appellant, who is expected to teach primary school students, should be granted an order by this Court in the exercise of its discretionary jurisdiction under Article 226 of the Constitution. On the facts which have emerged before the Court, the appellant was tried on a charge, inter alia, under Section 302 of the Penal Code and was acquitted on the basis of an express finding of the Additional District and Sessions Judge that the principal witnesses have either turned hostile or had failed to support the case of the prosecution in the course of their cross-examination. The Court cannot be oblivious to the fact that a Shiksha Mitra is required to teach primary school students. Their interest and welfare must be of paramount concern. Particularly when these facts are borne in mind coupled with the basic nature of appointment, the appellant had no vested right to a writ of mandamus as prayed for. We, therefore, decline to entertain the special appeal against the judgment and order of the learned Single Judge, though for the reasons which we have noted above. The appeal is, accordingly, dismissed. There shall be no order as to costs. ——————