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2016 DIGILAW 4055 (ALL)

DINESH CHANDRA SHUKLA v. STATE OF U. P.

2016-12-16

ASHWANI KUMAR MISHRA, DILIP B.BHOSALE, YASHWANT VARMA

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JUDGMENT Hon’ble Dilip B. Bhosale, C.J.—A Division Bench, while dealing with the instant appeal, framed the following questions of law and directed the papers to be placed before the Chief Justice for constituting a larger Bench for its opinion: “(a) Whether inclusion of the name of a person in the select panel with reference to an advertisement published prior to the enforcement of the Government Order dated 02.06.2010 i.e. 01.04.2010 would confer any right of appointment even after 01.04.2010. (b) Whether in view of the Government Order dated 02.06.2010 no fresh appointment on the post of Shiksha Mitra can be made even if the selection had taken place earlier. (c) Whether the law laid down by the Division Bench of this Court in the case of Smt. Usha Kumari (supra) and Sheela Yadav (supra) is the correct law.” 2. These questions arose while dealing with the appeal filed by the appellant - original petitioner who, in the writ petition, sought a writ of mandamus commanding the District Basic Education Officer, Basti as well as the Principal, District Education and Training Institute, Basti, to send him for training and then to appoint him on the post of Shiksha Mitra in Primary School Chachai, Gram Panchayat Chachai, Vikas Khand Gaur, District Basti. The appellant had applied for engagement as a Shiksha Mitra in response to the advertisement dated 21.11.2007 for the session 2007-08 and he claims that he was selected vide resolution dated 10.12.2007. His selection, however, could not be finalized, as few writ petitions were filed before this Court by several candidates who had also participated in the selection process. The writ petitions, including the writ petition filed by the appellant, were finally disposed of, directing the District Magistrate to consider their claim. The District Magistrate, vide order dated 15.07.2010 held that the selection of the appellant was justified. The order of the District Magistrate was subjected to challenge by another candidate before this Court in a writ petition bearing Civil Misc. Writ Petition No. 55300 of 2010, but the writ petition was dismissed vide order dated 09.09.2010. Thereafter, the appellant filed a writ petition, from which the instant appeal arises, seeking a direction to the respondents to send him for training and to appoint him as Shiksha Mitra. Writ Petition No. 55300 of 2010, but the writ petition was dismissed vide order dated 09.09.2010. Thereafter, the appellant filed a writ petition, from which the instant appeal arises, seeking a direction to the respondents to send him for training and to appoint him as Shiksha Mitra. The writ petition was, however, dismissed, holding that the appellant was selected before 02.06.2010 and in view thereof and also in the light of a policy decision taken by the State Government vide Government Order dated 02.06.2010 that no Shiksha Mitra shall be engaged in view the Right to Education Act, 2009, the appellant’s prayer cannot be granted. In short, it was held that once the scheme for appointment of Shiksha Mitra has been done away with in view of the Right to Education Act, 2009, no fresh appointment could be made on the post of Shiksha Mitra subsequent to the Government Order dated 02.06.2010. 3. The Division Bench, in this backdrop, while dealing with the appeal, noticed the judgment of this Court in Smt. Usha Kumari v. State of U.P. & Ors., Special Appeal No. 61 of 2014, whereby another Division Bench of this Court had held that since the selection process had been initiated prior to the enforcement of the Government Order dated 02.06.2010, i.e. with effect from 1 April 2010, the right of the appellant, who was selected with reference to the earlier advertisement dated 2005, would not be lost. The Division Bench further noticed the judgment of one more Division Bench in Smt. Sheela Yadav & Ors. v. State of U.P. & Ors., Special Appeal No. 765 of 2011, decided on 09.05.2011, affirming the view taken in Usha Kumari. The Division Bench, on examination of these judgments, found that one of the important aspects of the matter, namely, that mere selection does not confer any right and that mere inclusion of the name in the select list does not confer any right upon the selected candidate and if the State Government has taken a decision to do away with the appointment of Shiksha Mitras with effect from 1 April 2010, the incumbent, who might have been selected with reference to an advertisement published earlier, will get no right for a writ of mandamus after 1 April 2010 for appointment as a Shiksha Mitra did not appear to have been considered. Having so observed and after noticing the judgments of the Supreme Court, the Division Bench found it difficult to accept the general proposition of law as propounded in Usha Kumari and Sheela Yadav, and framed the above questions and requested to place them before a larger Bench for its opinion. 4. When we heard the reference, none appeared for the appellant. We have heard learned Additional Advocate General for the respondent - State. He, at the outset, invited our attention to the judgment of a larger Bench of this Court in Km. Sandhya Singh & Ors. v. State of U.P. & Ors., 2013(7) ADJ 1 (FB), and submitted that the questions referred for our consideration and the position of law emerging from the judgment above mentioned, it is clear that the issues raised are no more res integra and have been answered by the larger Bench in this judgment. We have perused the judgment of the larger Bench in Sandhya Singh (supra). The questions referred to the larger Bench therein read thus: “(A) Whether mere selection on a date prior to 02.06.2010 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 02.06.2010 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.” The larger Bench, after having heard learned counsel for the parties, reformulated the questions as under: “1. When selection process of Shiksha Mitra is complete? 2. Whether such selected candidates can claim appointment as a matter of right? 3. Indisputably, under executive instructions selected candidates were permitted to work as Shiksha Mitra on payment of fixed monthly amount called honorarium. In this view of the matter, still selected candidates, to whom the appointment is not offered, can claim as a right for appointment notwithstanding the ban order dated 2nd of June, 2010, the latter being not under scrutiny? 4. Indisputably, under executive instructions selected candidates were permitted to work as Shiksha Mitra on payment of fixed monthly amount called honorarium. In this view of the matter, still selected candidates, to whom the appointment is not offered, can claim as a right for appointment notwithstanding the ban order dated 2nd of June, 2010, the latter being not under scrutiny? 4. The effect of commencement of Right to Education Act, 2009? 5. Whether the apparent divergent views expressed by the different Division Benches are reconcilable?” 5. From a bare perusal of the questions referred to and also framed by the larger Bench in Sandhya Singh, it is clear that the questions referred to this larger Bench are similar. We have perused the judgment of the larger Bench in Sandhya Singh, wherein the larger Bench referred to several Division Bench judgments, including the judgment in Sheela Yadav as also the judgments of the Supreme Court and in the concluding paragraphs held thus: “65. 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. 66. 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.” 6. It is clear from the judgment of the larger Bench in Sandhya Singh, that mere selection or mere inclusion of name in the select list does not confer any right upon the selected candidate and, hence, the selected candidate, to whom the appointment is not offered, cannot claim, as a right, for appointment in view of the Right to Education Act, 2009 and the Government Order dated 02.06.2010. None of the counsel for the parties made any attempt to persuade us to take a differing view than the view taken by the Full Bench in Sandhya Singh (supra). In the circumstances, we answer the first question in the negative; the second question in the affirmative and, insofar as the third question is concerned, we hold that the law laid down by the Division Bench of this Court in Usha Kumari and Sheela Yadav is not the correct enunciation of the law. The Registry is directed to place the special appeal before the appropriate Bench for its consideration on merits in the light of the position of law as has been stated in this judgment in answer to the questions referred to this Full Bench.