UPTET : Forgery & Bad Luck of Shiksha Mitra Candidate for Appointment of Teacher
Muje lagta hai yeh ek badeee ajeeb kahanee hai kismat kee -
is kahanee mein Mamta Upadhya naam kee ladkee ne farjee marksheet ke jariye Nokri hathiyayee,
Lekin jab baad mein Pol khulee to usne Nokri se isteefa .Resign de diya.
Tab merit list mein uske baad vaalee ladkee Shakuntla Yadav ne Nokri par claim kiya,
Lekin Court ne yeh kehte hue uska Maamla Kharij Kar Diya ki RTE Act ke Tehat -
Shiksha Mitron ki Regular Bhrtee Par Rok Lag Chukee Hai, Aur
Farjee Marksheet Valee Mamta ne pehle hee Isteefaa De Diya Hai,
Isleeya Shakuntla Yadav ka Nokri Par Claim Nahin Bantaa
Aaap bhee gor se nirnay paden aur batayen agar ku6 sansodhit baat aapko samjh aatee hai to -
See Judgement -
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HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 30
Civil Misc. Writ Petition No. 3408 of 2013
Smt. Shakuntla Yadav
Versus
State of U.P. and others
Hon'ble V.K. Shukla,J
Earlier Smt. Shakuntla Yadav petitioener was before this Court complaining therein that
Mamta Upadhaya has succeeded in procuring appointment based on fraud and manipulation being made in her mark sheet. This Court on 18.9.2012 directed the District Magistrate to conduct inquiry into the matter as to whether manipulation has been made or not. This much is reflected that Mamta Upadhaya failed to participate in the proceeding in question and further it was also found that she has tendered her resignation on 14.12.2012. District Magistrate took note of the fact that Mamta Upadhaya has tendered her resignation and in reference to the petitioner, it has been mentioned that after enforcement of Government Order dated 2.6.2010 petitioner cannot be offered appointment.
Sri Sidhharth Khare, Advocate, learned counsel for the petitioner contended with vehemence that once
Mamta Upadhaya had succeeded in claiming appointment based on fictitious mark sheet, then petitioner is entitled to be offered appointment and she relinquished her post and authorities have erred in law in not offering appointment to her, and for this purpose she has placed reliance on judgment rendered in the case of Km. Sonika Verma Versus State of U.P. and others 2011(1) ADJ 103 (DB), Special Appeal No. 511 of 2011, decided on 16.5.2011 and Writ Petition No. 20528 of 2011 decided on 15.4.2011
Countering the said submission, learned Standing Counsel on the other hand contended that once Mamta Upadhaya has tendered her resignation and there is Government Order prohibiting selection and appointment w.e.f. 2.6.2010 and based on the provision as contained under Right of Children to Free and Compulsory Education Act, 2009, then no relief or reprieve can be given to the petitioner.
In the present case, factual situation which has so emerged that selection proceedings for the post of Shiksha Mitra relates to the year 2002 for block Kanjal Kala, and select list was prepared on 13.9.2002 and therein name of the petitioner figured at serial no. 3 and name of Mamta Upadhaya figured at serial no. 2. Petitioner submits that she had made complaint on 25.2.2003 and thereafter reminder was made on 22.11.2005. Petitioner further submits that when she made inquiry on internet on 19.12.2005, status shown was pending. Petitioner had approached this Court by preferring Civil Misc. Writ Petition No. 47682 of 2012 and therein forgery has been alleged. This Court on 18.9.2002 directed the authority concerned to take decision. Mamta Upadhaya has tendered her resignation and thereafter, petitioner claims that it was she who was entitled to be offered appointment, as candidate, who has been placed at serial no.2 had taken admission for Special B.T.C. Course and she had no interest in pursuing the same, and being third in the select panel, she should be offered appointment.
Petitioner submits that here selection is prior to Government Order dated 2.6.2010 and accordingly she is entitled to be offered appointment in view of judgment rendered in the case of Km. Sonika Verma Versus State of U.P. and others 2011(1) ADJ 103 (DB), Special Appeal No. 511 of 2011, decided on 16.5.2011 and Writ Petition No. 20528 of 2011 decided on 15.4.2011
Case of Sonika Verma, has been followed in Special Appeal No 511 of 2011(Prabha Devi Versus State of U.P. and others) and in Writ Petition No. 20528 of 2011 Smt. Sunita Devi Versus State of U.P. and others and Sonika Verma has been considered in Special Appeal No. 2106 of 2011 Smt. Seeta and others Vs. State of U.P. decided on 3.11.2011 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.
Apart from this in Special Appeal No. 1955 of 2010 (Tarun Prakash Pandey Vs. State of U.P. and others), this Court has taken following view:-
"
The appellant has preferred this special appeal challenging the order of the learned Single Judge dated 19.11.2010 whereunder the writ petition was rejected by holding that keeping in view the Government Order dated 2nd June, 2010, no fresh engagement of Shiksha Mitra be made in view of the Right to Education Act, 2009, therefore, the Shiksha Mitras who are reported for training but could not complete due to lack of funds as per the demand made by the Principal of the college to the Director on 18.8.2010, cannot get any benefit thereof.
We are of the view that there is no infirmity in the order of the learned Single Judge. The government order comes in the light on 2nd June, 2010. Admittedly the petitioner was called upon for training on 12th August, 2010 after the issuance of government order but due to lack of funds, training was not completed. The question of engagement of Shiksha Mitra, if any, will come after the completion of the training. Even assuming the fund has been allocated for the purpose of training, no purpose should be sub-served because
fresh engagement of Shiksha Mitra is prohibited by the government.
The learned counsel appearing for the appellant contended before us that the Government Order dated 2nd June, 2010 cannot be held applicable retrospectively when the appellant is required to complete his training.
We are of the view that there is falacy of argument. Fresh engagement requires only after the training, therefore, when no engagement as such has been made, the case of the appellant will be hit by Government Order dated 2nd June, 2010.
Therefore, the appeal cannot be admitted. Hence it is dismissed, however, without imposing any cost.
Copy of Government Order dated 2nd June, 2010 as placed by learned counsel appearing for authorities be kept with the record."
Consequently, in the fact of the case, once selection is of the year 2002 nature of engagement is purely contractual and Mamta Upadhaya had obtained appointment on the basis of misrepresentation, and she has tendered her resignation, then after enforcement Government Order dated 2.6.2010 as petitioner has no indefeasible right to be offered appointment, no appointment can be offered to the petitioner.
Consequently, present writ petition is dismissed.
Dt.22.01.2013
T.S.
Source :
http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2335858
