HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- SPECIAL APPEAL No. - 245 of 2015 Appellant :- Smt. Priyanka Mall Respondent :- State Of U.P. And 5 Ors. Counsel for Appellant :- R.S. Kushwaha Counsel for Respondent :- C.S.C.,Awadhesh Kumar,D.D. Chauhan Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Manoj Kumar Gupta,J.
1. The appeal has arisen from a judgment dated 27 March 2015 of a learned Single Judge dismissing the writ petition filed by the appellant. In the writ petition, the following reliefs, inter alia, were claimed:-
"(i) issue a writ, order or direction in the nature of Mandamus directing the respondents to permit the petitioner to complete her training of Shiksha Mitra.
(ii) issue a writ, order or direction in the nature of Mandamus directing the respondents to appoint the petitioner on the aforesaid post of Shiksha Mitra."
2. The case of the appellant in the writ petition was that an advertisement dated 21 November 2007 was issued inviting applications for engagement of qualified persons as Shiksha Mitra for the session 2007-08 at Primary School Arbapur, Gram Panchayat Pratappur, District Basti. In pursuance thereof, the appellant also made an application alongwith other candidates including Brijendra Pratap Singh, the sixth respondent. The Village Education Committee recommended the name of the sixth respondent for being appointed as Shiksha Mitra. The appellant objected to the recommendation made for selection of the sixth respondent, as he was not a resident of the village, in which the institution is situated. On such complaint being made, notice was issued to the sixth respondent and whereafter, the Sub Divisional Magistrate, Sadar, Basti, by an order dated 7 July 2008 cancelled the domicile certificate no.644 dated 4 December 2007 issued in favour of the sixth respondent. It was followed by a meeting of Village Education Committee dated 15 July 2008, in which the name of the appellant was recommended for selection on the post of Shiksha Mitra. The sixth respondent filed a representation for sending him for training of Shiksha Mitra on the basis of the recommendation made by the Village Education Committee in his favour on 10 December 2007. However, the District Development Officer, Basti, after hearing the sixth respondent, rejected his representation by an order dated 8 December 2008. The selection of the appellant was approved by the District Level Committee followed by a communication dated 11 December 2008 by the District Basic Education Officer, Basti requesting the Principal, District Institute of Education and Training, Basti to permit those selected as Shiksha Mitra including the appellant to undergo training. The appellant, it is claimed, started doing her training from 15 January 2009, when in the meantime, the sixth respondent filed a writ petition1 before this Court challenging the order dated 7 July 2008 passed by Sub Divisional Magistrate, Sadar, Basti cancelling the domicile certificate and the order of the Chief Development Officer, Basti dated 8 December 2008 rejecting his application for being appointed as Shiksha Mitra. In the writ petition, an interim order dated 22 January 2009 was passed in favour of the sixth respondent and in consequence whereof, it is asserted by the appellant that her training was abruptly stopped since 8 February 2009. The writ petition filed by the sixth respondent was finally disposed of by this Court by an order dated 17 September 2010 directing the Sub Divisional Magistrate, Sadar, Basti to decide the matter afresh.
3. In pursuance of the direction of this Court, the Sub Divisional Magistrate, Sadar, Basti, by an order dated 21 February 2011 again cancelled the domicile certificate issued in favour of the sixth respondent. After the said decision, the appellant made a representation on 28 February 2011 before the District Magistrate, Basti, wherein prayer was made for permitting her to complete the training, followed by appointment on the post of Shiksha Mitra. However, according to the appellant, no heed was paid thereto and this compelled her to approach this Court by way of a writ petition2, which stands decided by impugned judgment and order dated 27 March 2015. The learned Single Judge noted the contention of the learned standing counsel that under the Government Order dated 2 June 2010, there cannot be any fresh appointment of Shiksha Mitra in the State and held that such being the position, the writ petition has been rendered infructuous by efflux of time and consequently, dismissed the same.
4. The Government Order dated 2 June 2010 prohibits fresh appointment of Shiksha Mitras. The Government Order states that such prohibition is being placed in view of the enforcement of the Right of Children to Free and Compulsory Education Act, 20093 since 1 April 2010. The Act has been enacted by the Parliament to provide free and compulsory education to the children between the ages 6 and 14. The Act specifically prohibits appointment of a person as teacher who does not possess the essential qualification prescribed by the academic authority authorised by Central Government in his behalf by notification under Section 23 of the Act. The NCTE has been notified as the competent authority, which had prescribed the requisite minimum qualification for appointment of teachers of primary schools and junior high schools. According to it, every candidate should possess a TET pass certificate, whereas a Shiksha Mitra was required to possess the qualification of Intermediate only. In order to implement these provisions, the Government Order dated 2 June 2010 was issued, imposing ban on appointment of Shiksha Mitras.
5. The basic contention of learned counsel for the appellant is that the selection process for selection of the Shiksha Mitra, in the case at hand, was initiated with the issuance of an advertisement on 21 November 2007; the appellant was recommended for selection by the Village Education Committee in its meeting dated 15 July 2008 followed by approval by the District Level Committee; the appellant was sent for training from 15 July 2009, which could not be completed because of the stay order dated 22 January 2009 passed in the writ petition filed by the sixth respondent; that ultimately, by order dated 21 February 2011 the domicile certificate of the sixth respondent stands cancelled; and thus, the appellant is entitled to complete the training and to appointment as Shiksha Mitra. It is urged that the selection process having started before the issuance of the Government Order dated 2 June 2010, it cannot be applied to her case. In other words, it is contended that the Government Order would apply only prospectively and not to a case where the selection process had been initiated much before the issuance of the Government Order.
6. Per contra, learned standing counsel submitted that the appellant had no vested right to claim appointment as Shiksha Mitra. It is urged that the appointment as Shiksha Mitra was in pursuance of a Government Order dated 1 July 2000, whereunder the engagement of Shiksha Mitras is not against any civil post nor is governed by any statutory rules. A person is allowed to function as Shiksha Mitra under a contract for a fixed period which comes to an end on 31 May of the next year. Once the Government had taken a policy decision to discontinue the scheme, the appellant cannot claim a writ of mandamus for being appointed as Shiksha Mitra. In this regard, reliance has been placed on a Full Bench judgment of this Court in the case of Km. Sandhya Singh and others Vs. State of U.P. and others4. It is contended that the appellant who had not even undergone the training is not having any right to be appointed as Shiksha Mitra.
7. It is not in dispute that the engagement of Shiksha Mitra is not against any civil post nor is governed by statutory rules. The engagement of a person is for one academic session and comes to an end on 31 May of the following year, though it could be renewed for the next academic session. The object of the Government Order by which the scheme for engagement of Shiksha Mitra was brought into force dated 1 July 2000, was to make available primary education to the children residing in the villages. The idea was to harness the energy of the educated persons residing in the villages having education upto intermediate level to come forward and provide community services by taking on the responsibility of teaching the children in their villages. A Division Bench in the case of Sanjay Kumar Singh Vs. State of U.P5. has succinctly spelled out the nature of engagement under the scheme in the following words:-
"Everybody is forgetting that the scheme of Shiksha Mitra is to spread education and it is not a scheme for employment. What is being given in an honorarium to the concerned teacher. The appointment comes to an end at the end of the academic year, with right to continue if the performance is good."
8. Before the Full Bench the issue was; "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." The Full Bench after examining the scheme held that " (i) the scheme of Shiksha Mitra is to spread education and is not a source of employment; (ii) the selection process for Shiksha Mitra comes to an end only when a person is asked to give consent on the prescribed proforma to enter into a contract to serve as a Shiksha Mitra and not earlier to it; (iii) persons whose names have been recommended for selection do not get clothed with any vested right to claim appointment as Shiksha Mitra. It is held that with the coming into force of Government Order dated 2 June 2010, no person who had not already completed the training can be conferred the status of a Shiksha Mitra. It is further held that since no vested right is being taken away, therefore, even if the Government Order dated 2 June 2010 is applied to selections which have not come to an end, with the completion of training and exercise of option by the candidate to enter into contract to serve as Shiksha Mitra, there is no question of divesting a person of any right, nor of retrospective operation of the Government Order. For coming to such conclusion, reliance has been placed on another Full Bench judgment in the case of Shiv Kumar Sharma Vs. State of U.P6. Therein, the Full Bench held that a candidate aspiring to seek appointment as a teacher of elementary education has to essentially possess TET pass certificate, as per the notification dated 23 August 2010 by NCTE, issued in exercise of power conferred by Section 23 of the Act.
9. Admittedly, the appellant possesses the qualification of Intermediate. She is not qualified to be a teacher under the requirements as laid down by notification dated 23 August 2010 by NCTE in exercise of power under the Act7. Though, it is alleged that the appellant was called for training but it is admitted that the appellant could not complete the training and in the meantime, the Government Order dated 2 June 2010 came to be issued, which had imposed a complete ban on further engagement of a person as Shiksha Mitra. According to the Full Bench decision of this Court in the case of Km. Sandhya Singh (supra), the appellant does not get clothed with any vested right which may entitle her to a writ of mandamus directing the State to send her for training or to engage her services as Shiksha Mitra.
10. However, the appellant has placed reliance on a Division Bench judgment in the case of Smt. Usha Kumari Vs. State of U.P. and others8, wherein the view taken is that the selection process having started pursuant to an advertisement dated 27 October 2005 i.e. much prior to the issuance of the Government Order imposing the ban, would thus not be covered by the Government Order. A similar view was taken in the case of Km. Sonika Verma Vs. State of U.P. and others9. The Full Bench refused to follow the said judgment by holding that it was rendered 'dehors the Shiksha Mitra Scheme'. The Full Bench followed the law laid down by two other Division Benches in the case of Km. Rekha Singh Vs. State of U.P. and others10 and Pankaj Kumar Singh Vs. State of U.P. and others11 In the case of Km. Rekha Singh a Division Bench of this Court has held as under:-
"The question for our consideration is whether the judgment of the learned Single Judge suffers from any illegality. The post of Shiksha Mitra was a tenure post for a particular period. However, in the event, the services were found satisfactory, it could be continued.
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.
Accordingly, we find no merit in the appeal. Hence, the appeal is dismissed."
11. We are bound by the law laid down by the Full Bench of this Court. The view taken by the learned Single Judge, in the impugned judgment and order, is in consonance with the legal position which now holds the field. Consequently, we do not find any merit in the instant appeal and it is accordingly dismissed, but without any order as to costs.
Order Date :- 24.4.2015
SL (Dr. D.Y. Chandrachud, C.J.)
(M.K. Gupta, J.)