HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- CONTEMPT No. - 2024 of 2013
Applicant :- Janki Prasad Verma
Opposite Party :- Vrijendra Pandeyan,District Magistrate Balrampur & Anr.
Counsel for Applicant :- B.K.Singh
Counsel for Opposite Party :- S A Sabih,C B Singh,C S C
Hon'ble Dr. Satish Chandra,J.
Sri B.K. Singh, learned counsel for the petitioner submits that on 15.03.2013, the writ court has passed an order in Writ Petition No.1924 (MS) of 2012, where it was held that:-
"The writ petition is allowed and the
impugned order dated 21.03.2012 is quashed and mandamus is issued to respondent nos.1 and 2 to consider the appointment of the petitioner on the post of Shiksha Mitra in the light of the Government Order and advertisement within a period of one month from the date of production of certified copy of this order."
Learned counsel submits that the appointment has not been given to the petitioner on the post of Shiksha Mitra. He submits that as per the ratio laid down in Special Appeal No.765 of 2011 (Smt. Sheela Yadav & Ors. vs. State of U.P. & Ors.) dated 09.05.2011, it was held that the appointment will be given to the petitioner as it is prior to 2010. The Hon'ble Supreme Court vide its order dated 09.01.2012 has dismissed the Special Appeal No.21792/2011 filed by the State. So, he submits that the contempt has been committed.
On the other hand, Sri Surya Kumar holding brief of Sri C.B. Singh, learned counsel for the opposite party submits that after 02.06.2010, as per the Government Order, no appointment can be made on the post of Shiksha Mitra. Now TET Test is mandatory.
Regarding the ratio laid down in the case of Smt. Sheela Yadav (supra), he submits that the same was considered by the Larger Bench of this Court in Writ A No.26189 of 2012 (Km. Sandhya Singh & Ors. vs. State of U.P.) vide its judgment and order dated 08.08.2013,
where it was held that the TET Test is mandatory. No appointment can be made. The ratio laid down in the case of Smt. Sheela Yadav (supra) is superseded. So, he submits that no contempt has been committed.
After hearing both the parties and on perusal of the record, it appears that the Hon'ble Supreme Court has dismissed the SLP in the case of State of U.P. vs. Sheela Yadav & Ors., but without passing any speaking order. No ratio is laid down. Thus, at that time, the case of Smt. Sheela Yadav (supra) has become final. However, the Larger Bench of this Court has discussed the ratio laid down in the case of Smt. Sheela Yadav (supra), at length and finally it was held that no appointment on the post of Shiksha Mitra can be made out. So, no appointment is likely to be made on the post of Shiksha Mitra. Hence, no contempt has been committed.
Regarding the order passed by the writ court, it appears that the direction was to consider the case of the petitioner, which has been considered vide order dated 21.12.2013, where the claim of the petitioner has been dismissed.
From the above, it is evident that the order passed by the writ court has been complied with. However, for the grievance, if any, the petitioner is at liberty to raise the same within a period of two months, before the appropriate forum, if advised so. But, presently, no contempt exits.
With the aforesaid liberty, the contempt petition is dismissed.
Order Date :- 20.1.2014
Rakesh/-
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- MISC. SINGLE No. - 2051 of 2001
Petitioner :- Shiv Murti Mishra & Another
Respondent :- State Of U.P. Through Secretary,Basic Education,Lucknow &Ors
Petitioner Counsel :- Janardan Singh
Respondent Counsel :- C.S.C.,J.C.Srivastava,S.B. Pandey,Vidyavasini Kumar
Hon'ble Dr. Satish Chandra,J.
By this writ petition, the petitioner has assailed the orders dated 16.04.2001 and 11.05.2001, where the claim of the petitioners on the post of
Shiksha Mirta was ignored.
The brief facts of the case are that on 17.08.1999, the writ court has passed an order, where the direction was issued that the case of the petitioners shall be considered under the new scheme on the post of Shiksha Mitra.� If the selection will be made by the local bodies, then preference will be given to the petitioners over the fresh candidates under the Scheme of
Shiksha Mitra and Acharya.
Sri Janardan Singh, learned counsel for the petitioner has drawn the attention to the interim order passed by this Court on 23.07.2001, where a direction was issued that no fresh selection for the post of Shiksha Mitra shall be held unless either the judgment of this Court dated 17.08.1999 is complied with or the said judgment is got stayed or set aside.� Learned counsel further submits that the opposite party has not considered the case of the petitioners for the post of Shiksha Mitra or Acharya.� But, he accepts that no other person has been appointed on the said post.
On the other hand, Sri V.Kumar, learned counsel for the opposite party submits that the Shiksha Mitra Scheme has already� been abolished by the Government w.e.f. 2010.� Now,� T.E.T. (Teachers Eligibility Test)� is required for the post of Shiksha Mitra.
After hearing both the parties, it appears that the interim order passed by this Court was merely not to fill up the posts and the said posts were never filled up. About the direction dated 17.08.199 issued by the writ� court, it is evident that direction was to consider the case of the petitioners.
In the changed circumstances, now the case of the petitioners can not be considered due to the new Scheme of T.E.T.�
Hence, the prayer made in the petition has become infructuous by efflux of time.
Accordingly, the writ petition is dismissed being infructous.
Order Date :- 25.2.2013
ank
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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 365 of 2013
Petitioner :- Ranjeet Singh Yadav And Ors.
Respondent :- State Of U.P.Thru Principal Secretary & Ors.
Petitioner Counsel :- Abhishek Srivastava
Respondent Counsel :- C.S.C.,A.K.Yadav
Hon'ble Arun Tandon,J.
Heard learned counsel for the parties.
The petitioners who are six in number are B.Ed. degree holders. They have also qualified the
U.P.T.E.T. Examination of 2011. Petitioners claim to be working as Shiksha Mitra. They seek quashing of the corrigendum dated 31.08.2011, Government Order dated 05.12.2012 and advertisement dated 07.12.2012 being� ultra-vires and against the guidelines framed by the National Counsel for Teachers Education (N.C.T.E.). They also seek writ of Mandamus directing the respondents to fill up the vacancies as per advertisement dated 30.11.2011 or in the alternative to provide weightage to the persons already working Shiksha Mitras like petitioners in the matter of recruitment under the advertisement dated 07.12.2012.
Counsel for the petitioners submits that in the earlier advertisement dated 30.11.2011, which has now been canceled, 10% of� the seats of Primary Teachers were reserved for Shiksha Mitra. There is no reason to deviate from the said reservation. He submits that Rule 4 of the U.P. Basic Teachers Service Condition Rules, 1981 provides for the cadre strength. No amendment has been made to create cadre posts of trainee teachers therefore, the Government Order dated 05.12.2012 and the Advertisement dated 07.12.2012 are bad.
The contentions raised by the learned counsel for the petitioner do not appeal to the Court. Appointment of Trainee Teachers has been provided by Rule 14(1)(b) of the 1981 Rules and Rule 14(1)(c) provides that such Trainee Teachers after completing the six months special training in Children Education, shall be appointed as Assistant Teachers in Junior Basic Schools in the prescribed payscale.�
In view of the aforesaid there is no requirement of any separate cadre of Trainee Teachers being created.
Counsel for the petitioners then contended that B.Ed. had been declared as eligibility for appointment as Assistant Teachers, which is contrary to Rule 8 and also contrary to Rule 1 of the N.C.T.E. Notification dated 23rd August, 2010. This contention is bad on account of non consideration of Clause 3 of the notification of the N.C.T.E., which provides for appointing those candidates who possess Graduation and B.Ed. qualification with the condition that they shall be required to undergo six months special training as prescribed by the N.C.T.E. This relaxation is to subject to non availability of qualified condidates as per Clause 1 of the Notification dated 23.08.2010.
The petitioners are not B.T.C., they are B.Ed. and thereforethe plea raised is self defeating.
So far as 10% reservation of seats for Shiksha Mitra is concerned, under the Rule of 1981 there is no such provision for any reservation being provided in favour of the Shiksha Mitra. If on an earlier occasion the State Government had� provided for reservation in favour of the Shiksha Mitra, the same cannot be extended to the appointments to be made under Rules, 1981.
The writ petition is accordingly dismissed.
Order Date :- 16.1.2013
A. Verma
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HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 30
Civil Misc. Writ Petition No. 48159 of 2012
Rajneesh Ranjan
Versus
State of U.P. and others
Hon'ble V.K.Shukla,J.
Petitioner has rushed to this Court with request to direct the respondents to consider the candidature of petitioner of Shiksha Mitra by giving the benefit of Government Order dated 10.10.2005 and 24.04.2006 issued by Secretary Government of Uttar Pradesh, Lucknow and state Project Director, Lucknow respectively (Annexure No. 9 and 10) and appoint him as Shiksha Mitra in the respective village.
Learned counsel for the petitioner submits that selection proceeding on the post of Shiksha Mitra has been undertaken in the year 2005-06, and therein he has applied for being appointed on the post of Shiksha Mitra and thereafter merit list has been prepared wherein petitioner has been placed at serial no. 1 but thereafter no follow up action has been taken whereas he has been continuously representing the matter before the respondents.
Learned Standing counsel as well as Sri R. B. Pradhan advocate contended that selection is of the year 2005-06 and as on date there is Government Order dated 02.06.2010, and as per the same no fresh appointment letter can be issued for engagement on the post of
Shiksha Mitra, as such this Court should not issue futile direction.
After respective arguments have been advanced factual situation which is emerging in the present case is that selection proceeding on the post of
Shiksha Mitra has been undertaken in the year 2005-06 and petitioner has applied for being appointed on the post of Shiksha Mitra and merit list has been prepared and in the said merit list so prepared petitioner was placed at serial no. 1. Petitioner claims that he should be offered appointment. Merely because petitioner's name is there in the select list there is no legal right conferred on him to claim appointment on the post of Shiksha Mitra as a matter of right.
This court in Special Appeal No.2106 of 2011, Smt. Seeta and others vs. State of U.P. decided on 03.11.2011 has held as follows:
"Heard learned counsel for the parties.
This intra Court appeal, under the Rules of the Court, has been preferred against the order of the learned Single Judge dated 26.9.2011 passed in Writ Petition No.50266 of 2011 filed by the appellants.
The appellant-petitioners were applicants to the post of
Shiksha Mitra, but were not selected. They approached this Court by filing individual writ petitions challenging the selection. The said writ petitions were disposed of by this Court, requiring the petitioners to represent their grievances before the District Magistrate, Mainpuri, who was directed to decide the same. The District Magistrate, in compliance of the orders of this Court, considered the representations of the petitioner-appellants. The claim of appellant no.1 was allowed by the District Magistrate, vide order dated 18.2.2010. Similarly, the claim of appellant nos. 2 and 3 was also accepted by the District Magistrate, vide orders dated 30.10.2009 and 06.03.2010 respectively. After about one and half years of the orders of the District Magistrate in their favour, the appellants approached this Court by filing second writ petition, seeking a writ of mandamus to command the respondents to send them for training and offer appointment to the post of Shiksha Mitra.
Learned Single Judge, finding that the petitioner-appellants sat tight over the matter despite the orders of the District Magistrate in their favour and in the meantime, the State Government has issued a Government Order dated 2.6.2010 imposing total ban on the appointment of Shiksha Mitra, dismissed the writ petition. The learned Single Judge also placed reliance upon the judgment of a Division Bench of this Court in Special Appeal No.1995 of 2010 holding that after imposition of ban on the appointment of Shiksha Mitra, vide Government Order dated 2.6.2010, no fresh appointment/engagement on the post of Shiksha Mitra can be made.
Sri R.K. Ojha, learned counsel for the appellants submitted that since the selection of the petitioner-appellants was made prior to the imposition of ban by the State Government, hence they ought to have been sent for training and given appointment. It is further submitted that a Division Bench of this Court in Km. Sonika Verma Vs. State of U.P. & Others, 2011 (1) ADJ 103 (DB) has held that the Government Order dated 2.6.2010 imposing ban on the appointment of Shiksha Mitra was prospective in operation and the persons selected earlier are entitled for engagement. He further submitted that in view of there being a conflict with the opinion expressed by two Benches of coordinate jurisdiction, the learned Single Judge ought to have referred the matter for decision by a larger Bench and could not have dismissed the writ petition.
We have considered the argument advanced by the learned counsel for the appellants and perused the records.
The ban on the appointment of Shiksha Mitra was imposed by the State Government in view of the promulgation of the Right of Children to Free and Compulsory Education Act, 2009, which provides a detail procedure and qualifications for appointment of a Teacher in the Primary School. The Division Bench of this Court in Special Appeal No.1995 of 2010 has taken a view that after the ban imposed by the State Government, no fresh appointment can be made.
The view taken by the Division Bench in the case of Km. Sonika Verma (supra) referred to by the learned counsel for the appellants, in our considered opinion, is based on its own facts. In the case of Km. Sonika Verma (supra), the candidature of the appellant therein was placed in disputed category by the respondents without there being any dispute or litigation in respect of her selection. The respondents without adjudicating the case as to why her selection was disputed, simply informed her that she cannot be offered appointment due to ban imposed by the State Government vide Government Order dated 2.6.2010. It may be relevant to point out the following observation made by the Division Bench in the said case.
"It is evident from the record that there was no dispute in relation to the selection of the appellant as Shiksha Mitra. The word 'Vivadit' as mentioned in the proposal was found by the respondents themselves as incorrect. In such a situation to non-suit the appellant would be to deny the opportunity of employment to her on an erroneous assumption. The appellant was entitled to be offered appointment alongwith other selected candidates and there was no occasion to treat her selection to be disputed. This being the factual position in the present case, in our opinion, the respondents have erroneously applied the Government Order dated 2.6.2010, which cannot be pressed into service on the facts of the present case."
Thus, it was a case decided on its own facts, whereas in Special Appeal No.1995 of 2010, the Division Bench has upheld the validity of the Government Order dated 2.6.2010 imposing ban on the appointment of Shiksha Mitra. Thus, in our considered opinion, there is no conflict in the two decisions. In the present case, though the claim of the petitioner-appellants was upheld as long back as in 2009-2010, but they sat tight over the matter and only approached this Court much after the ban was imposed vide Government Order dated 2.6.2010. Once their claim was upheld by the District Magistrate and there was no follow up action, it was incumbent upon them to have taken steps for enforcement of their rights immediately or at least within a reasonable time. Learned Single Judge, thus, rightly refused to grant the relief claimed on account of delay on their part.
In view of the aforesaid facts and discussions, we do not find any error in the order of the learned Single Judge.
The appeal, being without merit, is dismissed".
Consequently, as per Government Order dated 02.06.2010, no fresh appointment letter can be issued for engagement on the post of Shiksha Mitra, and merely because name of petitioner finds place in the merit list, petitioner has no legal right conferred on him to claim appointment on the post of Shiksha Mitra as a matter of right, as such no relief can be accorded to the petitioner and accordingly present writ petition is dismissed.
Dated 19.09.2012
Dhruv
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HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 30
Case :- WRIT - A No. - 44263 of 2012
Petitioner :- Premila Devi & Others
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Babu Nandan Singh
Respondent Counsel :- C.S.C.,B.P. Singh
Connected with
1 Case :- WRIT - A No. - 44425 of 2012
Petitioner :- Sadhana Patel
Respondent :- State Of U.P. & Others
Petitioner Counsel :- B.D. Mishra,Kamal Kumar
Respondent Counsel :- C.S.C.,K.K. Chand
2. Case :- WRIT - A No. - 44430 of 2012
Petitioner :- Ramkhilawan & Another
Respondent :- State Of U.P. & Others
Petitioner Counsel :- B.D. Mishra,Kamal Kumar
Respondent Counsel :- C.S.C.,K.K. Chand
Hon'ble V.K. Shukla,J.
Every day writ petitions are being filed for directing the respondents to appoint the petitioners on the post of Shikshamitra in pursuance of selection made by Gram Shiksha Samiti/Block Level Committee, and in the said direction reliance is being placed on the judgment passed in Special Appeal No.1827 of 2010 in the case of Km. Sonika Verma vs. State of U.P. and others, 2011 (1) ESC 681. After the said judgment, there has been a judgment of Lucknow Bench in the case of Km. Rekha Singh vs. State of U.P. and others (Special Appeal No.276 (Defective) of 2011) and in the case of Pankaj Kumar vs. State of U.P. and others (Special Appeal No.373 (Defective) of 2011) dated 13.05.2011, wherein view has been taken that mere selection does not confer any right as laid down by the Apex Court in the case of Government of Orissa through Secretary Commerce and Transport Department, Bhubneshwar vs. Har Prasad and others reported in 1998 (1) ESC 74 (SC). Division Bench therein has taken the view that with the imposition of ban on 02.06.2010, there can be no further direction for appointment or training being imparted to
Shikshamitra, who were selected earlier. The relevant portion of the judgments of the said Division Benches of this Court are as follows:
"Special Appeal Defective No. 276 of 2011 :
In the instant case, even before the petitioner-appellant could be appointed and sent for training on account of intervening circumstance, the State took a stand that they are no longer making appointment to the post of
Shiksha Mitra in view of the promulgation of the Right to Education Act, 2009.
The selection only gives a right to the selected candidate to be considered. It is always open to the respondents to give satisfactory reasons for not making appointment. In the instant case, the respondents have given sufficient reason as to why the appointment could not be made. That reason cannot be faulted, namely that after promulgation of the Right to Education Act, 2009, they are no longer making any appointment to the post of
Shiksha Mitra?.
Special Appeal Defective No. 373 of 2011 :
Learned counsel for appellant also referred to a judgment rendered by the Division Bench headed by Hon'ble Chief Justice in his favour. However, in the said judgment, the appellant had been denied appointment on the ground that other similarly situated 22 candidates who have been selected with him, had been given appointment. In this case also, the Division Bench has held that Govt. Order 2..6.2010 was to apply prospectively.
Learned counsel for Basic Shiksha Adhikari, Sri Jyotinjay Verma referred to another Division Bench judgment of Allahabad Bench wherein it was held that fresh engagement requires a prior training, therefore, when no engagement as such has been made, the case of the appellant will be hit by Govt. Order dated 2nd June, 2010. Sri Verma also submitted that though process of file started between 2008 and 2011 but the appellant did not raise any issue till 2011 or in any case before issuance of Circular of 2010. Learned Counsel also submitted that State Govt. has issued further two Circulars dated 22.2.2011 and 1.3.2011 but reiterates the first Circular dated 2.6.2010. Thus, intention of the Govt. Order has been made amply clear that there was a ban on engagement after first Circular dated 2.6.2010. Similarly, learned State Counsel also referred to two judgments of the Supreme Court. In the judgment reported in AIR 1963 Supreme Court, page 395, Bachhittar Singh v. State of Punjab and another, a Constitution Bench laid down the basic law that even in a case where policy decision was taken as a part of cabinet noting in favour of a candidate yet if the same was not communicated to the person, it did not create any enforceable right. Learned State Counsel further referred to a judgment in Tagin Litin v. State of Arunachal Pradesh, 1996(5) SCC 83 wherein it was laid down that till appointment letter was issued or it was in transit, no enforceable right could be created.
In the instant case, though the learned counsel for appellant has annexed the recommendation of Village Level Committee but there is nothing to show that recommendation went up further or District Level Committee caused delay by sitting over the file. Moreover, the appellant had all the opportunity to agitate the issue before the date of issuance of Circular on 2.6.2010 but instead the writ petition was filed in 2011. Besides, there is nothing from the record to show that a decision was taken in favour of the petitioner or there was nothing like appointment letter for attending training under the Right to Education Act. Moreover, another Division Bench of Allahabad Bench in Tarun Prakash Pandey (supra), has categorically held that till the training was completed, there was no question of engagement as Shiksha Mitra and since there was ban on engagement even such candidates who had completed training after appointment, had no right to be communicated?."
Not only this, in Special Appeal No.2106 of 2011, this Court has not at all approved the view taken in the case of Km. Sonika Verma, and in the considered opinion of the Court, it was based on its own facts. In the said Special Appeal No.2106 of 2011 note has been taken of the judgment in Special Appeal No.1995 of 2011, wherein view has been taken that after the ban imposed by the State Government no fresh appointment can be made. The judgment in Special Appeal No.1995 of 2011 is being quoted below:
"This intra court appeal arises from the judgement and order of the learned single Judge dated 2.9.2011 dismissing the appellant's writ petition.
We have heard learned counsel for the appellant and perused the record.
It appears that one Smt. Pushpa Devi was engaged as 'Shiksha Mitra' in 2005. The appellant had also participated in the selection and was placed below Smt. Pushpa Devi in the merit list at serial no. 2. It is admitted fact that Smt. Pushpa Devi joined the post and worked for sometime.
However, subsequently, her appointment was cancelled on the ground that she obtained engagement on the basis of a forged mark sheet. The appellant thereafter, filed the writ petition claiming that since she was placed at serial no. 2 on the merit list she ought to have been given appointment.
Learned single Judge dismissed the writ petition on the ground that the panel or the select list having been exhausted after the appointment of Smt. Pushpa Devi, the appellant has no right and her claim cannot be considered. Hence, the present appeal.
Learned counsel for the appellant vehemently contended that since the appellant was placed at serial no. 2 in the select list and in view of the judgement of the Division Bench of this Court passed in Special Appeal no. 1827 of 2010 (Sonika Verma vs. State of U.P.), the appellant should have been considered for giving appointment against the vacancy caused due to removal of Smt. Pushpa Devi.
We do not find force in the submission for the reason that it is well settled legal position that after appointment of the selected candidate, the select list gets exhausted and therefore, learned single Judge rightly held that the appellant cannot be considered for appointment. Reliance placed on the decision of Sonika Verma (Supra) is misplaced and has no application in the facts of the present case.
The appeal being without merit stands dismissed."
This court in Special Appeal No.2106 of 2011, Smt. Seeta and others vs. State of U.P. decided on 03.11.2011 has held as follows:
"Heard learned counsel for the parties.
This intra Court appeal, under the Rules of the Court, has been preferred against the order of the learned Single Judge dated 26.9.2011 passed in Writ Petition No.50266 of 2011 filed by the appellants.
The appellant-petitioners were applicants to the post of Shiksha Mitra, but were not selected. They approached this Court by filing individual writ petitions challenging the selection. The said writ petitions were disposed of by this Court, requiring the petitioners to represent their grievances before the District Magistrate, Mainpuri, who was directed to decide the same. The District Magistrate, in compliance of the orders of this Court, considered the representations of the petitioner-appellants. The claim of appellant no.1 was allowed by the District Magistrate, vide order dated 18.2.2010. Similarly, the claim of appellant nos. 2 and 3 was also accepted by the District Magistrate, vide orders dated 30.10.2009 and 06.03.2010 respectively. After about one and half years of the orders of the District Magistrate in their favour, the appellants approached this Court by filing second writ petition, seeking a writ of mandamus to command the respondents to send them for training and offer appointment to the post of Shiksha Mitra.
Learned Single Judge, finding that the petitioner-appellants sat tight over the matter despite the orders of the District Magistrate in their favour and in the meantime, the State Government has issued a Government Order dated 2.6.2010 imposing total ban on the appointment of Shiksha Mitra, dismissed the writ petition. The learned Single Judge also placed reliance upon the judgment of a Division Bench of this Court in Special Appeal No.1995 of 2010 holding that after imposition of ban on the appointment of Shiksha Mitra, vide Government Order dated 2.6.2010, no fresh appointment/engagement on the post of Shiksha Mitra can be made.
Sri R.K. Ojha, learned counsel for the appellants submitted that since the selection of the petitioner-appellants was made prior to the imposition of ban by the State Government, hence they ought to have been sent for training and given appointment. It is further submitted that a Division Bench of this Court in Km. Sonika Verma Vs. State of U.P. & Others, 2011 (1) ADJ 103 (DB) has held that the Government Order dated 2.6.2010 imposing ban on the appointment of Shiksha Mitra was prospective in operation and the persons selected earlier are entitled for engagement. He further submitted that in view of there being a conflict with the opinion expressed by two Benches of coordinate jurisdiction, the learned Single Judge ought to have referred the matter for decision by a larger Bench and could not have dismissed the writ petition.
We have considered the argument advanced by the learned counsel for the appellants and perused the records.
The ban on the appointment of Shiksha Mitra was imposed by the State Government in view of the promulgation of the Right of Children to Free and Compulsory Education Act, 2009, which provides a detail procedure and qualifications for appointment of a Teacher in the Primary School. The Division Bench of this Court in Special Appeal No.1995 of 2010 has taken a view that after the ban imposed by the State Government, no fresh appointment can be made.
The view taken by the Division Bench in the case of Km. Sonika Verma (supra) referred to by the learned counsel for the appellants, in our considered opinion, is based on its own facts. In the case of Km. Sonika Verma (supra), the candidature of the appellant therein was placed in disputed category by the respondents without there being any dispute or litigation in respect of her selection. The respondents without adjudicating the case as to why her selection was disputed, simply informed her that she cannot be offered appointment due to ban imposed by the State Government vide Government Order dated 2.6.2010. It may be relevant to point out the following observation made by the Division Bench in the said case.
"It is evident from the record that there was no dispute in relation to the selection of the appellant as Shiksha Mitra. The word 'Vivadit' as mentioned in the proposal was found by the respondents themselves as incorrect. In such a situation to non-suit the appellant would be to deny the opportunity of employment to her on an erroneous assumption. The appellant was entitled to be offered appointment alongwith other selected candidates and there was no occasion to treat her selection to be disputed. This being the factual position in the present case, in our opinion, the respondents have erroneously applied the Government Order dated 2.6.2010, which cannot be pressed into service on the facts of the present case."
Thus, it was a case decided on its own facts, whereas in Special Appeal No.1995 of 2010, the Division Bench has upheld the validity of the Government Order dated 2.6.2010 imposing ban on the appointment of Shiksha Mitra. Thus, in our considered opinion, there is no conflict in the two decisions. In the present case, though the claim of the petitioner-appellants was upheld as long back as in 2009-2010, but they sat tight over the matter and only approached this Court much after the ban was imposed vide Government Order dated 2.6.2010. Once their claim was upheld by the District Magistrate and there was no follow up action, it was incumbent upon them to have taken steps for enforcement of their rights immediately� or at least within a reasonable time. Learned Single Judge, thus, rightly refused to grant the relief claimed on account of delay on their part.
In view of the aforesaid facts and discussions, we do not find any error in the order of the learned Single Judge.
The appeal, being without merit, is dismissed".
This Court in writ petition No.26189 of 2012, Km. Sandhya Singh and others vs. State of U.P. and others has proceeded to make the following reference:
"There is a conflict in the law laid down by the two Division Benches, as noticed above, it has become necessary for this Court to refer the following questions for being referred to a Larger Bench :
(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.
Since similar matters are coming up before this Court repeatedly, it would be appropriate that the said question may be answered by the Larger Bench, at the earliest possible. Let the papers be laid immediately before the Hon'ble The Chief Justice for constituting the Larger Bench."
In view of this, the record of present writ petitions be also connected with the record of writ petition No.26189 of 2012.
Order Date :- 4.9.2012
SRY
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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - A No. - 534 of 2012
Petitioner :- Devi Prasad Singh
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Ajoy Kumar Banerjee
Respondent Counsel :- C.S.C.,K.S. Kushwaha
Hon'ble Arun Tandon,J.
The writ petition appears to be wholly misconceived.
Under the Government Order dated 01.09.2011, provisions have been made for imparting B.T.C. Training Course and the selections to be held for the purpose. Under Clause 3(b), the age for making the application� has been provided as 18-30 years years with relaxation of five (5) years in favour of Scheduled Castes, Scheduled Tribes, Other Backward Class and dependents of freedom fighters. Under clause 5(c), 10% seats have been reserved for the persons working as Shiksha Mitra in the State of Uttar Pradesh. Petitioner admits that he is over age with reference to clause 3(b).
It is his case that since the petitioner is a Shiksha Mitra and is entitled to be considered within 10% reservation in the matter of admission to B.T.C. Course, there should be relaxation of the outer age limit by five (5) years.
The contention has only been raised to be rejected. It is for the State Government to provide the minimum and outer age limit for admission to B.T.C. Course 2011. Merely because 10% reservation in the matter of admission to B.T.C. Training Course is provided, it will not mean that age relaxation must necessarily be provided to
Shiksha Mitra.
The writ petition lacks merit and is dismissed.
Order Date :- 2.7.2012
N.S.Rathour
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HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 7
Case :- WRIT - A No. - 26189 of 2012
Petitioner :- Km. Sandhya Singh And Others
Respondent :- State Of U.P.Thru. Secy. And Others
Petitioner Counsel :- Babu Nandan Singh
Respondent Counsel :- C.S.C.
Hon'ble Arun Tandon, J.
Petitioners, who are five in number, claim to have been selected for the post of Shiksha Mitra in the year 2009. However, they were neither appointed as Shiksha Mitra nor were sent for training despite the said selection. In the meantime the State Government imposed a ban on appointment of Shiksha Mitra because of the change in the policy vide Government Order dated 02.06.2010. The scheme in respect of Shiksha Mitra itself has been done away with and by means of the subsequent government order it has been provided that no further training to
Shiksha Mitras shall be provided.
According to the petitioners one Sheela Yadav who was also selected similarly like the petitioner filed Civil Misc. Writ Petition No. 15796 of 2011 before the High Court. The writ petition was dismissed on 29.03.2011 because of the ban imposed by the State Government vide Government Order dated 02.06.2010.
Sheela Yadav, not being satisfied, filed Special Appeal No. 765 of 2011. The appeal has been allowed by the Division Bench of the High Court and it has been held that since selections had taken place earlier in point of time to the imposition of the ban, the same shall not apply as it was prospective in nature. The selected Shiksha Mitra was directed to be sent for training.
According to the petitioner against the order of the Division Bench, Special Leave to Appeal was filed before the Apex Court which has been dismissed on 09.01.2012. Petitioners have, therefore, come up before this Court for similar orders being issued.
On behalf of the respondents it is stated that although the Division Bench in the case of Sonika Verms vs. State of U.P. and others reported in 2011 (1) ESC, 681 has held that the Government Order dated 02.06.2010 is prospective in nature, therefore, will not prohibit the appointment and training of Shiksha Mitra who had been selected earlier to the imposition of ban. Yet two other Division Benches of the Lucknow Bench of this Court in the case of Km. Rekha Singh vs. State of U.P. and others (Special Appeal Defective No. 276 of 2011) and in the case of Pankaj Kumar vs. State of U.P. and others (Special Appeal Defective No. 373 of 2011 dated 13.05.2011) have explained that mere selection does not confer any rights as laid down by the Apex Court in the case of Government of Orissa through Secretary, Commerce and Transport Department, Bhubaneshwar vs. Harprasad and others reported in 1998 (1) ESC, 74 (SC). The Division Benches have gone on to hold that with the imposition of the ban on 02.06.2010, there can be no further direction for appointment or training being imparted to the Shiksha Mitra who were selected earlier. The relevant portion of the judgments of the said Division Benches of this Court are as follows:
?Special Appeal Defective No. 276 of 2011 :
In the instant case, even before the petitioner-appellant could be appointed and sent for training, on account of intervening circumstance, the State took a stand that they are no longer making appointment to the post of Shiksha Mitra in view of the promulgation of the Right to Education Act, 2009.
The selection only gives a right to the selected candidate to be considered. It is always open to the respondents to give satisfactory reasons for not making appointment. In the instant case, the respondents have given sufficient reason as to why the appointment could not be made. That reason cannot be faulted, namely that after promulgation of the Right to Education Act, 2009, they are no longer making any appointment to the post of Shiksha Mitra?.
?Special Appeal Defective No. 373 of 2011 :
Learned counsel for appellant also referred to a judgment rendered by the Division Bench headed by Hon'ble Chief Justice in his favour. However, in the said judgment, the appellant had been denied appointment on the ground that other similarly situated 22 candidates who have been selected with him, had been given appointment. In this case also, the Division Bench has held that Govt. Order 2..6.2010 was to apply prospectively.
Learned counsel for Basic Shiksha Adhikari, Sri Jyotinjay Verma referred to another Division Bench judgment of Allahabad Bench wherein it was held that fresh engagement requires a prior training, therefore, when no engagement as such has been made, the case of the appellant will be hit by Govt. Order dated 2nd June, 2010. Sri Verma also submitted that though process of file started between 2008 and 2011 but the appellant did not raise any issue till 2011 or in any case before issuance of Circular of 2010. Learned Counsel also submitted that State Govt. has issued further two Circulars dated 22.2.2011 and 1.3.2011 but reiterates the first Circular dated 2.6.2010. Thus, intention of the Govt. Order has been made amply clear that there was a ban on engagement after first Circular dated 2.6.2010. Similarly, learned State Counsel also referred to two judgments of the Supreme Court. In the judgment reported in AIR 1963 Supreme Court, page 395, Bachhittar Singh v. State of Punjab and another, a Constitution Bench laid down the basic law that even in a case where policy decision was taken as a part of cabinet noting in favour of a candidate yet if the same was not communicated to the person, it did not create any enforceable right. Learned State Counsel further referred to a judgment in Tagin Litin v. State of Arunachal Pradesh, 1996(5) SCC 83 wherein it was laid down that till appointment letter was issued or it was in transit, no enforceable right could be created.
In the instant case, though the learned counsel for appellant has annexed the recommendation of Village Level Committee but there is nothing to show that recommendation went up further or District Level Committee caused delay by sitting over the file. Moreover, the appellant had all the opportunity to agitate the issue before the date of issuance of Circular on 2.6.2010 but instead the writ petition was filed in 2011. Besides, there is nothing from the record to show that a decision was taken in favour of the petitioner or there was nothing like appointment letter for attending training under the Right to Education Act. Moreover, another Division Bench of Allahabad Bench in Tarun Prakash Pandey (supra), has categorically held that till the training was completed, there was no question of engagement as Shiksha Mitra and since there was ban on engagement even such candidates who had completed training after appointment, had no right to be communicated?.
There is a conflict in the law laid down by the two Division Benches, as noticed above, it has become necessary for this Court to refer the following questions for being referred to a Larger Bench :
(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.
Since similar matters are coming up before this Court repeatedly, it would be appropriate that the said question may be answered by the Larger Bench, at the earliest possible. Let the papers be laid immediately before the Hon'ble The Chief Justice for constituting the Larger Bench.
Dated :25.05.2012
VR/26189/12
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