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Allahabad High Court · body

2016 DIGILAW 2039 (ALL)

MOHD. HARUN v. STATE OF U. P.

2016-05-26

RAJAN ROY

body2016
JUDGMENT Hon’ble Rajan Roy, J.—Heard learned counsel for the parties. 2. The State Government framed and implemented a scheme of Siksha Mitra which was not job oriented but was put in motion to serve the society in the field of education and in lieu thereof some honorarium was to be provided to such Shiksha Mitra. The appointment of Shiksha Mitra was for a period of 11 months which was to automatically come to an end on 31st May of the current academic session. A provision for renewal of such appointment was also made. 3. The petitioner herein appeared in the selection for appointment as Shikha Mitra at Primary School Naya Purwa under Gram Panchayat Achramau, Nyay Panchayat Bhainsamau, Post Bakshi Ka Talab, District Lucknow. The Gram Shiksha Samiti sent a proposal in this regard on 10.2.2007 which did not include the name of the petitioner, as, allegedly, his experience as Instructor which was a preferential factor could not be verified. Consequently he could not be given any preference in the matter. On coming to know about the same the petitioner submitted a representation on 21.6.2007 to the Basic Education Officer who ordered an enquiry. Based thereon and after verifying his experience as instructor, requisite information was sent to the Samiti. Consequently the Gram Shiksha Samiti sent a proposal for appointment of the petitioner as Shiksha Mitra on 15.8.2007 taking into account his experience as instructor in non-formal education scheme. The petitioner was sent for training and according to him he completed the same. 4. One Sri Ravindra Kumar Rao filed a Writ Petition No. 7201 (SS) of 2007 being aggrieved by the said proposal which was disposed of vide order dated 6.11.2007 with a direction to the competent authority to decide his representation by a reasoned and speaking order within a period of two months. In compliance thereof the Basic Education Officer considered and rejected the representation of Sri Ravindra Kumar Rao after hearing the concerned parties vide his order dated 3.3.2008. 5. Sri Ravindra Kumar Rao again filed Writ Petition 2514 (SS) of 2008 challenging the alleged order dated 3.3.2008 and also sought direction that he be sent on training on the basis of the first proposal dated 10.2.2007. On 16.5.2008 this Court stayed the alleged order dated 1.3.2008 and directed the opposite parties to permit Sri Ravindra Kumar Rao to discharge his duties as Shiksha Mitra. On 16.5.2008 this Court stayed the alleged order dated 1.3.2008 and directed the opposite parties to permit Sri Ravindra Kumar Rao to discharge his duties as Shiksha Mitra. This writ petition was dismissed on 5.7.2012 on a statement made by the Basic Education Officer regarding the genuine-ness of the experience certificate of the petitioner dated 9.3.2011 and Sri Ravindra Kumar Rao filed an application for recall of the order dated 5.7.2012 which was also dismissed on 8.8.2012. He moved an application for review of the order in the month of August 2012 which according to the petitioner has not been decided as yet. Sri Ravindra Kumar Rao has not been impleaded as a party in these proceedings. 6. Consequent to dismissal of writ petition filed by Sri Ravindra Kumar Rao the petitioner submitted various representations which were not considered, therefore, he was compelled to file Writ Petition No. 4195 (SS) of 2013 before this Court which was disposed of vide order dated 24.7.2013 with a direction to the concerned official to decide the representation of the petitioner dated 25.5.2012 but the said representation was not decided. The petitioner filed a contempt petition No. 1515(C) of 2014 (Mohd. Harun v. Sri Savanand) wherein notices were issued to the concerned party. Subsequently the impugned order was passed rejecting the petitioner’s representation. 7. In the interregnum on 2.6.2010 a Government order was issued banning any fresh appointment of Shiksha Mitra as the Right of Children to Free and Compulsory Education Act, 2009 had come into force. 8. In nutshell the ground for rejection is that consequent to Government order dated 2.6.2010 fresh engagement of Shiksha Mitra cannot be done. The impugned order also refers to a letter of State Project Director dated 23.5.2012 by which guidance was sought with regard to those who had been appointed as Shiksha Mitra prior to issuance of Government order dated 2.6.2010, whether they should be sent on training or not, whereupon the State Government vide its order dated 22.2.2011 made it clear that after coming into force of the “Right of Children to Free and Compulsory Education, Act, 2009” fresh appointment of Shiksha Mitra had been done away with. The impugned order further states that engagement of Shiksha Mitra was only for a period of one academic session with a provision for renewal for the next academic session vide Government order dated 1.7.2000 subject to their work and conduct being satisfactory. The Basic Education Officer opined that as the petitioner was not posted in any school, therefore, in view of Government order 2.6.2010 he could not be appointed or posted as Shiksha Mitra. He accordingly rejected the representation of the petitioner. 9. The counsel for the petitioner has relied upon a Division Bench judgment of this Court rendered in Special Appeal No. 61 of 2014 (Smt. Usha Kumar v. State of U.P. and others) decided on 15.1.2014, wherein, in some what similar circumstances, the judgment of a Single Judge Bench of this Court declining to interfere in the matter, was set aside and a direction was issued to the District Magistrate to reconsider the case of the appellant having due regard to the fact that ban on fresh recruitment w.e.f. 1.4.2010 was not to come in the way of the appellant. The Division Bench took a view that ban had been imposed only on fresh appointment whereas the grievance of the appellant pertained to the selection process said to have commenced pursuant to an advertisement dated dated 27.10.2005 and based thereon appointment had been made which was cancelled by the District Magistrate on the ground that the appellant ranked higher in merit. The Division Bench observed that if that be the position, it would be appropriate for the District Magistrate to treat the case of the appellant as falling beyond the purview of the Government order dated 2.6.2010. 10. Learned counsel for Basic Education Officer on the other hand relies upon the Full Bench decision Sandhya Singh and others v. State of U.P. and others, 2013(7) ADJ 1 (FB), which according to him had not been considered by the Division Bench in Usha Kumaris’ (Supra). He opined that in view of the Government order dated 2.6.2010 and enunciation of law on the subject by the Full Bench in Sandhya Singh (supra) the petitioner cannot be appointed as Shiksha Mitra. 11. He opined that in view of the Government order dated 2.6.2010 and enunciation of law on the subject by the Full Bench in Sandhya Singh (supra) the petitioner cannot be appointed as Shiksha Mitra. 11. No doubt the selection on the basis of which the petitioner claims a right of appointment was initiated and held in the year 2007 and his name was proposed subsequently in the second proposal dated 15.8.2007, though, in the first proposal the name of Sri Ravindra Kumar Rao had been proposed and even if assertion of the petitioner that he was sent on training is accepted, the fact of the matter is that on a challenge being made in Writ Petition No. 2514 (SS) of 2008 at the behest of Sri Ravindra Kumar Rao, the order of Basic Education Officer in favour of the petitioner was stayed on 16.5.2008 and Sri Rao was directed to discharge the duties of Shiksha Mitra and after the stay order dated 16.5.2008 the petitioner could not be appointed as Shiksha Mitra. Though the Government order dated 2.6.2010 had not come into existence but the fact is that the petitioner was not appointed or posted in any institution and in the interregnum i.e. before the dismissal of the writ petition filed by Sri Ravindra Kumar Rao on 8.8.2012, the Government order dated 2.6.2010 came into force by which fresh appointments were banned on account of coming into force of the Right of Children to Free and Compulsory Education Act, 2009 wherein teachers could be appointed only with specified qualifications which the petitioner did not have and there is nothing to indicate otherwise. 12. The Full Bench decision of this Court in the case of Km. Sandhya Singh (Supra) was rendered on 8.8.2013 but it appears that the same was not placed before the Division Bench which decided the Special Appeal No. 61 of 2014 on 15.1.2014, therefore, it could not be considered by it. The question referred to the full Bench and considered by it were as under : “(A) Whether mere selection on a date prior to 2.6.2010 will confer a right upon the incumbent to claim appointment and for being sent for training as Shiksha Mitra even after the State Government has imposed a ban on such appointment on 2.6.2010 and the scheme of Shiksha Mitra itself has been dropped by the State Government. (B) Whether the law laid down by the Division Bench in the case of Sonika Verma v. State of U.P. and others (supra) or the law laid down by the Division Benches in the case of Km. Rekha Singh v. State of U.P. and others (supra) and in the case of Pankaj Kumar v. State of U.P. and others (supra) is the correct law.” 13. The Full Bench took into consideration the nature and Scope of Shiksha Mitra Scheme and opined in paras 50 and 51 of the judgment as under : “50. A bare perusal of the judgment in the case of Sheela Yadav would reveal that attention of the Court was not invited towards the fact that in the Shiksha Mitra Scheme itself it is mentioned that it is not a job oriented scheme. The facts that the appointment of Shiksha Mitra is only for eleven months in a year and it comes to an end automatically on 31st of May of the next year and that Shiksha Mitra Scheme is to serve the society through local youths and in lieu of the same honorarium is provided escaped the attention of the Court while deciding the aforesaid case. All these factors were considered by the other Division Benches taking a different view of the matter. In our considered view, the judgments in the cases of Sheela Yadav and Km. Sonika Verma having rendered dehors the Shiksha Mitra Scheme, do not lay down correct law, there is no analysis of the Shiksha Mitra Scheme. “51. Even otherwise also, there is no question of prospective or retrospective of the Government order dated 2nd of June, 2010. Every Government order, unless it provides otherwise, talks prospectively. The same view has been taken in the case of Sheela Yadav (supra). Ban is being imposed so far as it relates to fresh appointments of Shiksha Mitras. The day on which the G.O. Dated 2nd of June, 2010 came into, no status of Shiksha Mitra was conferred on the petitioners as admittedly none of them had undergone successful training to become a Shiksha Mitra. Thus, from any angle, we fail to understand as to how the judgment in the case of Sheela Yadav (supra) supports the petitioners’ case, the dismissal of SLP notwithstanding.” 14. The Full Bench went on to answer the reference made to it in the following terms : “67. Thus, from any angle, we fail to understand as to how the judgment in the case of Sheela Yadav (supra) supports the petitioners’ case, the dismissal of SLP notwithstanding.” 14. The Full Bench went on to answer the reference made to it in the following terms : “67. With regard to question (A), in view of the above discussion, we are of the opinion that the petitioners were not duly selected and even if they were selected, the selection will not confer a right upon them to claim appointment and for being sent for training as Shiksha Mitras in view of the Ban imposed by the State Government by the GO dated 2nd of June, 2010. In other words, persons whose names even if recommended prior to 2.6.2010, will not acquire any right to claim a direction for appointment as Shiksha Mitra. “68. The question (B) is answered by holding that the case of Sonika Verma was decided on its peculiar facts and therefore, it will have no general application. The law laid down in the cases of Km. Rekha Singh and Pankaj Kumar are correct enunciation of law and we express our concurrence with them.” 15. As the petitioners claim was rejected on the basis of Government order dated 2.6.2010 imposing a ban on such appointment on account of coming into force the Right of Children to Free and Compulsory Education Act, 2009 prescribing prerequisites and eligibility for appointment of teachers for imparting teaching in Primary Schools which the Shiksha Mitra scheme did not satisfy and also the undeniable fact that the petitioner does not satisfy these prerequisites and neither petitioner’s appointment letter had been issued nor he was posted in any school prior to 2.6.2010 this Court finds no reason to issue a direction for appointment of the petitioner in view of the Full Bench decision in Sandhya Singh (supra). This Court is bound by the dictum of the Full Bench in Sardhya Singh (supra) which has not been noticed by the Division Bench in Usha Kumar (supra). No such relief as prayed can be granted. There is nothing on record to indicate that the petitioner possesses the qualifications/training as prescribed in the Act, 2009 and the Rules framed thereunder. This Court is bound by the dictum of the Full Bench in Sardhya Singh (supra) which has not been noticed by the Division Bench in Usha Kumar (supra). No such relief as prayed can be granted. There is nothing on record to indicate that the petitioner possesses the qualifications/training as prescribed in the Act, 2009 and the Rules framed thereunder. True there was a provision for renewal of appointment of Shiksha Mitra but then the scheme itself was not a job oriented one and there was no guarantee of renewal, therefore, to enter into a hypothetical analysis that if the petitioner had been appointed in time he would have been considered for renewal with consequential benefits would be a futile exercise without any legal basis as the fact is that even if the petitioner had undergone the requisite training as claimed, he was not appointed as Shiksha Mitra prior to 2.6.2010 and after coming into force of the Act, 2009 is not qualified to teach in Primary schools. The only course open to the petitioner herein is to seek compensation for the injury caused, if any. 16. With the aforesaid observations the writ petition is dismissed.