Awdhesh Pratap Singh vs State Of U.P. & Others
2017 Latest Caselaw 4834 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 18
 

 
Case :- WRIT - A No. - 34561 of 2012
 

 
Petitioner :- Awdhesh Pratap Singh
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Kshetresh Chandra Shukla,Sanjeev Singh,Suresh Bahadur Singh
 
Counsel for Respondent :- C.S.C.,Anuj Kumar,R.P. Shukla
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioner challenging the order dated 02.06.2012 passed by the District Magistrate, Sant Ravidas Nagar (Bhadohi) rejecting the claim of the petitioner for his continuance as Shiksha Mitra in Primary School, Chakbasehu, Gram Sabha Banjari, district Sant Ravidas Nagar. A further prayer has been made by the petitioner that he may be allowed to continue as Shiksha Mitra in the said school.

2. It is the case of the petitioner as argued by his counsel Mr Sanjeev Singh that the petitioner was selected as Shiksha Mitra for Primary School, Chakbasehu, in pursuance of an advertisement issued in April, 2001. At Gram Sabha Banjari in District Sant Ravidas Nagar, there are two Primary Schools, namely, Primary School, Chakbasehu and Primary School, Banjari. As per the Government Orders relating to Shiksha Mitra dated 26.05.1999 and 01.07.2000, the first post of Shiksha Mitra in a Primary School will go to a candidate belonging to the caste of village Pradhan. The post of village Pradhan in 2001 was reserved for Scheduled Castes candidate and therefore as per Government Policy, the first post of Shiksha Mitra in the said school was reserved for Scheduled Caste candidate.

3. In Primary School, Chakbasehu, Santosh Kumar, a Scheduled Castes Category candidate, and in Primary School, Banjari, Maujlal, a Scheduled Castes Category candidate were selected. For Primary School, Chakbasehu, the petitioner Awdhesh Pratap Singh and for Primary School, Banjari, Sarla Devi were selected as unreserved Category candidates. The District Level Committee, Sant Ravidas Nagar headed by the District Magistrate had given its approval to the said selection in May, 2001.

4. After undergoing training, the petitioner started working in Primary School, Chakbasehu in July, 2001. Since his work and conduct was entirely satisfactory, the Village Education Committee renewed the engagement of the petitioner for Shiksha Mitra from time to time. When election took place, a new village pradhan was elected, namely, Rajmani Yadav and after joining as Gram Pradhan, Shri Rajmani Yadav had started to harass all four Shiksha Mitra and tried to force them to resign so that he may make fresh appointments on the said vacancies of persons belonging to his caste. Due to obstinate attitude of Shri Rajmani Yadav, the honorarium of all Shiksha Mitras was stopped from time to time and on complaints being made to the Basic Education Officer, and on inquiry report being submitted in favour of Shiksha Mitras by Assistant Basic Education Officer, honorarium was directed to be released by the Basic Education Officer.

5. True copy of one such inquiry report submitted by the Assistant Basic Education Officer to the District Basic Education Officer has been filed by the petitioner as Annexure-8 to the writ petition.

6. It is evident from a perusal of the said inquiry report that the Pradhan had not made any effort to convene a meeting of the Village Education Committee for renewal of terms of all four Shiksha Mitras for the past 2-3 years i.e. from the time he was elected as Pradhan. He was also not releasing the honorarium of all Shiksha Mitras on time, and therefore, the Basic Education Officer had to intervene and pass orders on the recommendation of the Assistant Basic Education Officer for releasing of honorarium to the Shiksha Mitras. Not being satisfied with the harassment of the petitioner and other Shiksha Mitras, the then Gram Pradhan, Rajmani Yadav convened the meeting of the Village Education Committee for terminating the services of the petitioner, Sarla Devi and Maujlal. The Village Education Committee passed a Resolution on 27.09.2008 for removal of these three Shiksha Mitras. This proposal was forwarded by the Basic Education Officer to the District Magistrate, who gave his approval.

7. The allegation against the petitioner was that he indulged in politicking and was interested only in running a fair price shop in his name. Sarla Devi was recommended for removal on the ground that she was married to a person residing in Madhya Pradesh and, therefore, was not interested in working as Shiksha Mitra any more in village Banjari. Against Maujlal, the allegation was that he was a drug addict and was not interested in working at all.

8. It has been pointed out by Mr Sanjeev Singh, learned counsel for the petitioner that the Village Education Committee was not constituted as per the Government Order as it was prescribed therein that parents of students studying in the Primary School should alone be included in the Village Education Committee, besides the Village Pradhan and the Gram Panchayat Secretary, and Headmaster of the School concerned. The petitioner had obtained information through an application filed under the Right to Information Act that three of the members of the Village Education Committee, which had passed the proposal for removal on 27.09.2008 were ineligible as their children were not studying in Primary Schools of the village at the time.

9. Against the order passed on the alleged Resolution dated 27.09.2008, petitioner and Smt. Sarla Devi filed Writ A No. 63955 of 2008 (Awdhesh Pratap Singh and another vs State of U.P. and others) and this Court on 11.12.2008 had granted interim protection, but the said writ petition was disposed of on 24.04.2012 with a direction to the District Magistrate to take a decision. The petitioners therein were given liberty to file representation before the District Magistrate ventilating their grievance. In the meantime, Smt. Sarla Devi had filed a representation to the District Magistrate and the District Magistrate on 02.02.2011 had already passed an order directing Smt. Sarla Devi to continue as Shiksha Mitra of Primary School, Banjari.

10. When Writ A No. 63955 of 2008 was finally disposed of by this Court on 24.04.2012, the petitioner filed a representation before the District Magistrate on 04.05.2012 mentioning in detail how the petitioner was being harassed by the then Village Pradhan and repeatedly on the intervention of the Assistant Basic Education Officer and Basic Education Officer, honorarium of the petitioner as well as other Shiksha Mitras were released.

11. The District Magistrate constituted the Inquiry Committee by his order dated 15.05.2012. This Inquiry Committee conducted on the spot inquiry and recorded the statements of various persons including the then Headmaster of the Primary School, Banjari and Assistant Teacher and Headmaster of Primary School, Chakbasehu. The report was submitted on 22.05.2012.

12. It has been argued by the learned counsel for the petitioner that a copy of the Inquiry Report dated 22.05.2012 had been brought on record by the State-respondents by means of a supplementary counter affidavit. A perusal of the supplementary counter affidavit would show that the statements of all persons, who were questioned by the Inquiry Committee have been made in favour of the petitioner. All the persons have said that the petitioner had no Fair Price Shop in his name, his brother did have a licence of Fair Price Shop, but the petitioner was not involved in the running of the same. The petitioner's teaching was satisfactory and that he was not involved in politics.

13. Learned counsel for the petitioner on the basis of the said Inquiry Report stated that despite such a positive Inquiry Report being submitted in his favour, the District Magistrate in the order impugned only recorded that due to changed circumstances, the statements of various persons taken by the Inquiry Committee appear contradictory and unreliable.

14. The District Magistrate on the other hand has relied upon the proposal of the Village Education Committee dated 27.09.2008 and the approval thereof by the then District Magistrate and the order passed by the Basic Education Officer thereafter, for dis-engagement of the petitioner and has affirmed the same. The District Magistrate has, for no reason whatsoever, discarded the report of the Inquiry Committee, which Inquiry Committee, he himself had constituted to inquire into the work and conduct of the petitioner.

15. Learned counsel for the State-respondents during the course of arguments has referred to the proposal of the Village Education Committee dated 27.09.2008, but has not been able to show that the Village Education Committee was constituted in terms of the various Government Orders issued in this regard. Learned Standing Counsel has also not been able to dispute the Inquiry Report dated 22.05.2012, a copy of which has been filed through supplementary counter affidavit before this Court.

16. I have perused the copy of Inquiry Report filed along with supplementary counter affidavit sworn by the District Basic Education Officer, Sant Ravidas Nagar. From a perusal of the said Inquiry Report dated 22.05.2012, it is evident that statements of several persons were recorded. Such persons were connected with the Village Education Committee of the Village, and the Primary Schools running in the said village. None of the persons had stated anything negative regarding work and conduct of the petitioner. The four members Inquiry Committee, namely, District Basic Education Officer, Sant Ravidas Nagar, District Development Officer, District Panchayat Officer, and Finance and Accounts Officer in the Office of the Basic Shiksha Adhikari, Sant Ravidas Nagar, after taking the statements of all concerned including the petitioner concluded that despite notice of the Committee being constituted and the said Committee visiting the village concerned, the then Chairman of the Village Education Committee/Gram Pradhan had not appeared nor did the current Gram Pradhan appear before the Committee. The conclusion drawn by the Committee states that although Resolution was passed on 27.09.2008 for removing the petitioner and others, no opportunity of hearing was given to the affected Shiksha Mitras. At no point of time, the charges of politicking and being busy in running the Fair Price Shop were found proved and therefore, the recommendation was made that the petitioner be allowed to continue to work as Shiksha Mitra in the vacancy in Primary School, Chakbasehu, Gram Sabha Banjari.

17. I have also perused the order impugned passed by the District Magistrate and I find that the District Magistrate has glossed over the finding recorded by the four members Inquiry Committee and has given more credence to the proposal/resolution of the then Village Education Committee dated 27.09.2008.

18. The District Magistrate has observed that on the basis of all records, it cannot be proved beyond doubt that the charges against the petitioner were without any basis. The District Magistrate has therefore, rejected the representation of the petitioner and affirmed the order passed by the then District Magistrate and Basic Education Officer removing the petitioner from the post of Shiksha Mitra.

19. This Court is of the firm belief that the petitioner has suffered due to arbitrariness on the part of the then Village Education Committee and due to failure of the District Magistrate to consider the facts of the case in the right perspective. The order passed by the District Magistrate rejecting the representation of the petitioner is liable to be set aside and is hereby quashed.

20. The question before this Court now is confined to whether the second relief prayed for by the petitioner i.e. for allowing the petitioner to continue as Shiksha Mitra in the said Primary School, Chakbasehu, Gram Sabha Banjari can be allowed also, in view of the law settled by the Hon'ble Supreme Court in the case of State of U.P. and another vs Anand Kumar Yadav and others, decided on 25.07.2017.

21. The Hon'ble Supreme Court has affirmed the law as laid down by the Full Bench of this Court quashing the amendment in the Rules framed under the Right of Children to Free and Compulsory Education Act, 2009 permitting Shiksha Mitras to continue and has also quashed the amendments made under the U.P. Basic Education Act, 1972 and the Rules framed thereunder allowing regularization of Shiksha Mitra, who were unqualified, after the Notification dated 23.08.2010 by the NCTE was issued.

22. The Hon'ble Supreme Court observed that in view of the clear mandate of the law statutorily requiring minimum qualification for appointment of teachers after 23.08.2010, there was no doubt that no appointment was permissible without such qualification, and appointments made after 23.08.2010 of unqualified Shiksha Mitras were found to be illegal by the Court.

23. However, the Supreme Court has observed that relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of the applicable Rules relating to qualifications. Since the appointment of Shiksha Mitra was only contractual and not as per the qualification prescribed for an Assistant Teacher in the Basic Education Act, 1972 and Rules framed thereunder in 1970, they could not be considered for regularization. They were not teachers in terms of the Act and the Rules applicable at the time when these engagement were made contractually. The State Government was not competent to relax qualifications for such Shiksha Mitra.

24. However, the Hon'ble Supreme Court has observed that it may be permissible to give some weightage to the experience of these Shiksha Mitras or some age relaxation may be possible and they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for regular teachers for next two consecutive recruitments. It has further observed that till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on the same terms on which they were working prior to their absorption, if the State so decides.

25. The petitioner no doubt was engaged in 2001 as Shiksha Mitra i.e. much before the Notification dated 23.08.2010 issued by the NCTE, prescribing the minimum qualifications for teachers in Primary School, of passing the Teachers' Eligibility Test. The petitioner has nowhere stated in the writ petition nor in any of the subsequent affidavits filed by him that he has obtained any training qualification viz. BTC through Open Distance Learning Method or or any other such training as required under the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978; or that he has passed the Teachers Eligibility Test thereafter.

26. This Court therefore cannot issue a mandamus to the authorities to let the petitioner continue on the post of Shiksha Mitra in Primary School, Chakbasehu, Gram Sabha Banjari as prayed for, and which would have been a natural consequential relief that this Court could have given after setting aside the order dated 02.06.2012 passed by the District Magistrate, Sant Ravidas Nagar.

27. However, since the petitioner was working w.e.f. 2001 and has continued to work till 2008 as Shiksha Mitra in the said school and his dis-engagement has been found to be vitiated by this Court, it shall be open for the respondent No. 2 to consider re-engagement of the petitioner as Shiksha Mitra, if the scheme is still continuing as the Hon'ble Supreme Court has not given any clear cut direction for dis-engagement of Shiksha Mitra working before the appointed date i.e. 23.08.2010. The discretion has been left with the State-respondents to let Shiksha Mitra engaged earlier to continue and be given opportunity to participate in two consecutive recruitments for Assistant Teachers to be undertaken by the State Government. If on the basis of decision taken by the Government, such Shiksha Mitra are allowed to continue on honorarium basis, as were engaged before 23.08.2010, then appropriate orders in this regard be passed by the District Magistrate, Sant Ravidas Nagar within eight weeks from the date a certified copy of this order is produced before him.

28. The writ petition stands partly allowed to this extent.

Order Date :- 22.09.2017

Sazia