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2019 DIGILAW 1145 (ALL)

Basic Shiksha Adhikari A. Nagar v. Madhuri

2019-05-01

AJAI LAMBA, NARENDRA KUMAR JOHARI

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JUDGMENT : 1. Basic Shiksha Adhikari, Ambedkar Nagar has preferred this intra-Court special appeal in challenge to decision dated 15.7.2011 rendered in Writ Petition No. 4101 (S/S) of 2011 Km. Madhuri vs. State of U.P. vide the impugned order, the writ petition filed by the respondent/writ petitioner was allowed. 2. For ready reference, the impugned order is extracted here-below: "Mr. R.P. Verma, learned counsel for the respondent no. 3 speaks that the Government Order dated 2nd of June, 2010 is hurdle for issuing appointment of the petitioner as it bans the appointment of Shiksha Mitra, whereas the controversy has already been dealt with by this Court in other matter, in which it has been held that the ban on appointment shall apply prospectively. The petitioner's select list was prepared in 2008, yet the appointment order is to be issued. Therefore, I am of the view that the Government Order dated 2nd of June, 2010 shall not have bearing over the selection already taken place. Under these circumstances, order dated 17.7.2010 passed by the District Basic Education Officer, Ambedkar Nagar is hereby quashed and a direction is issued to the respondents to finalize the petitioner's selection by implementing it within two weeks after receipt of a certified copy of this Order. With the aforesaid observation, writ petition is allowed." 3. Learned counsel for the respondents/writ petitioner has not appeared. Case relates to the year 2011. Eight years have gone by. We find no reason to await appearance of the counsel. In the circumstances, with the assistance of learned counsel for the appellant Mr. Jyotinjay Verma, Advocate and learned counsel for the State Mr. Raj Baksh singh, we have gone through the pleadings, contents of the impugned order and have referred to the law on the issue. 4. Perusal of the impugned order indicates that the writ petition of the respondent/writ petitioner was allowed considering that the respondent/writ petitioner was selected for the post of Shiksha Mitra and select list was prepared in the year 2008 itself. Appointment, however, was not given. The ban to engagement/appointment of Shiksha Mitras came in consequence to Government Order dated 2.6.2010, which is on a subsequent date. Learned Single Judge accordingly has held that order rejecting the claim of the respondent/writ petitioner vide order dated 17.7.2010 is quashed and a direction was issued to the appellant/respondents to finalise petitioner's selection by implementing it within two weeks. The ban to engagement/appointment of Shiksha Mitras came in consequence to Government Order dated 2.6.2010, which is on a subsequent date. Learned Single Judge accordingly has held that order rejecting the claim of the respondent/writ petitioner vide order dated 17.7.2010 is quashed and a direction was issued to the appellant/respondents to finalise petitioner's selection by implementing it within two weeks. 5. From the above, we find that the premise on which the writ Court proceeded was that the selection process of the writ petitioner had concluded in 2008. Government Order was issued on 2.6.2010 on a subsequent date. Hence, the Government Order would not come in the way of appointment of the petitioner. The Government Order would only have prospective effect. In effect, it has been held that on selection of the petitioner in 2008 for the post of Shiksha Mitra, a right to appointment was vested in the petitioner, which could not be taken away by issuance of the Government Order on 2.6.2010, i.e. on a subsequent date. Relevant portion of the Government Order reads as under: ^^fo"k;%& fu%'kqYd ,oa vfuok;Z f'k{kk dk vf/kdkj vf/kfu;e] 2009 ds ifjÁs{; esa f'k{kkfe=ksa dh uohu fu;qfDr cUn fd;s tkus ds lEcU/k esaA egksn;] mijksDr fo"k;d vkids i= la[;k&f'kŒfeŒ@614@2010&11] fnukad 06-05-2010 ds lanHkZ esa eq>s ;g dgus dk funs'k gqvk gS fd fu%'kqYd ,oa vfuok;Z f'k{kk dk vf/kdkj vf/kfu;e 2009 fnukad 01-04-2010 ls ykxw gks tkus ds ifjÁs{; esa 'kklu }kjk lE;d fopkjksijkUr f'k{kkfe=ksa dh uohu fu;qfDr rRdky ÁHkko ls cUn fd;s tkus dk fu.kZ; fy;k x;k gSA d`i;k bl laca/k esa vko';d dk;Zokgh djus dk d"V djsA** 6. On going through Government Order dated 2.6.2010, we find that it was issued consequent to the coming in force Right of Children to Free and compulsory Education Act, 2009 (in short, Act of 2009). 7. Learned counsel for the appellant has vehemently argued that firstly mere selection would not give any right to an applicant to claim appointment; and secondly the interest of better education is required to be considered in context of the Act of 2009. The minimum educational criteria has been laid down. It is in consequence to the said legislation that Government Order dated 2.6.2010, as extracted above, has been passed. Learned counsel for the appellant has pointed out that the matter has been finally adjudicated by a Full Bench of this Court in case titled Km. The minimum educational criteria has been laid down. It is in consequence to the said legislation that Government Order dated 2.6.2010, as extracted above, has been passed. Learned counsel for the appellant has pointed out that the matter has been finally adjudicated by a Full Bench of this Court in case titled Km. Sandhya Singh and Others vs. State of U.P. and Others, (2013) 31 LCD 1710 . 8. We have considered the facts and circumstances of the case, as noticed above, in context of the law as laid down by Full Bench of this Court in Km. Sandhya Singh's case (supra). 9. Paras 1, 67 and 68 of the judgment in Km. Sandhya Singh's case (supra) would be relevant in context of the facts and circumstances of this case. The said paras read as under: "1. Finding two conflicting decisions given by two division benches of this Court, a learned Single Judge, by the order dated 25th of May, 2012 has referred the following two questions of law for consideration to a larger bench. That is how the matter has come up before us on the nomination made by Hon'ble the Chief Justice. Following two questions have been referred: (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 vs. State of U.P. and Others (supra) or the law laid down by the Division Benches in the case of Km. Rekha Singh vs. State of U.P. and others (supra) and in the case of Pankaj Kumar vs. State of U.P. and Others (supra) is the correct law. xxx xxx xxx xxx xxx 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." 10. Perusal of question (A) raised before the Full Court as reflected in para 1 of the judgment rendered in Km. Sandhya Singh's case (supra) that has been extracted above itself demonstrates that the issue raised by virtue of this appeal was raised before the Full Court. It has been answered in para 67 of the Full Court judgment, as noticed above. 11. From the law laid down by the Full Bench, it becomes clear that firstly mere selection would not ordinarily create a right to appointment; and secondly that merely because the name of the petitioner figures in the select list for the post of Shiksha Mitra in the year 2008, the respondent/writ petitioner cannot claim a right to engagement/appointment as Shiksha Mitra after coming into force Government Order dated 2.6.2010, portion of which has been extracted above. We have taken into account the fact that the Government Order dated 2.6.2010 has been issued in the interest of better quality of education, thereby providing a particular minimum educational qualification and training for the teachers. In such circumstances, the respondent/writ petitioner would not be entitled to any relief, either in facts, law or equity. 12. We have no hesitation in holding that the impugned order cannot be sustained in the eyes of law in view of the law laid by Full Court of this Court in Km. Sandhya Singh's case (supra), relevant portion of which has been extracted above. The impugned order has not been passed on acceptable principle of law. 13. Accordingly, the appeal is allowed. The impugned order is set aside.