Roshanee Singh vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 1594 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 8
 

 
Case :- SERVICE SINGLE No. - 8368 of 2020
 

 
Petitioner :- Roshanee Singh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. Lko & Others
 
Counsel for Petitioner :- Onkar Singh
 
Counsel for Respondent :- C.S.C.,Ajay
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Onkar Singh, learned counsel for the petitioner and Sri Ran Vijay Singh, learned counsel for the opposite parties.

By means of this petition, the petitioner has prayed following reliefs:-

(I) Issue a writ, order or direction in the nature of Certiorari for quashing the definition of "Shiksha Mitra" as provided in Clause 2 (V) of the Uttar Pradesh Basic Education (Teacher) Service Rules, 1981, to the extent which says that the "Shiksha Mitra" means "working Shiksha Mitra" Annexure No.1.

(II) Issue a writ, order or direction in the nature of Certiorari for quashing and set aside all the consequential Government Orders, to the extent which treats "Shiksha Mitra" as "Working Shiksha Mitra".

(III) Issue a writ, order or direction in the nature of mandamus commanding to the opposite parties to give all the benefits i.e. weightage of Shiksha Mitra, as per her Shiksha Mitra experience, to the petitioner ignoring the condition of "Working Shiksha Mitra".

(IV) Issue a writ, order or direction in the nature of mandamus commanding to the opposite parties, to permit the petitioner to rejoin on the post of Shiksha Mitra, in Primary School Badiyan Kheda, Block Sikandarpur Karna, District Unnao.

(V) Issue any other writ, order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and allow this writ petition with cost."

By means of order dated 13.1.2021, this Court while considering the request of the learned counsel for the petitioner to file amendment application granted him time to file such application to explain the term 'working Shiksha Mitra' as indicated in Appendix-I of the Uttar Pradesh Basic Education (Teachers) Service (Twentieth Amendment) Rules, 2017.

Today, learned counsel for the petitioner has submitted that he shall not file any amendment application as it is not required in this case.

As per learned counsel for the petitioner, the petitioner was initially appointed as Shiksha Mitra in Primary School Badiyan Kheda, Block Sikandarpur Karna, District Unnao on 14.11.2008 pursuant to the Government Order dated 26.5.1999. Thereafter, she was absorbed/ appointed on the post of Assistant Teacher on 1.7.2015 as per Government Order dated 19.6.2013.

Batch of writ petitions were filed before this Court by the persons, who claimed to be eligible for appointment and whose chances were affected by filling up vacancies of Assistant Teachers by regularizing the Shiksha Mitras against such vacancies. Those writ petitions were opposed by the State Government and Shiksha Mitras by stating that the scheme of Shiksha Mitras was to meet a situation where sufficient trained Teachers were not available while constitutional mandate of imparting elementary education was to be fulfilled. The issue referred to the Full Bench of this Court to adjudicate as to whether appointment of Shiksha Mitras in pursuance of Government Order dated 26.5.1999 was of the statutory character. Some more issues were raised before the Full Bench but for deciding this writ petition, there would be no fruitful purpose to deal with those issues. The Full Bench was of the view that the nature of appointment of Shiksha Mitras could not authorize them to be treated as Teacher in terms of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (for brevity "Rules, 1981"). Further, they did not have the qualifications prescribed under the said Rules inasmuch as on the date of appointment, they did not have Bachelor Degree nor they had Basic Teachers Certificate as prescribed under the Rules, 1981. The Full Bench further held that the reservation policy had not been followed. No doubt they may have served the need of the hour, their regular appointment in violation of requisite statutory qualification was illegal. The matter went in appeal before the Hon'ble Apex Court in re; State of U.P. and Another Vs. Anand Kumar Yadav and Others, Civil Appeal No.9529 of 2017. The Hon'ble Apex Court was pleased to uphold the view of the High Court with certain observations to the extent that it may be permissible to give some weightage to the experience ofShiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as Teacher was not permissible. The Hon'ble Apex Court has held that the Shiksha Mitras have got no legal right to get any relief or preference but in a peculiar situation, 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 next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Till they avail this opportunity, the State is at liberty to continue them as Shiksha Mitras on the same terms and conditions on which they were working prior to their absorption, if the State so decides.

As per learned counsel for the petitioner, the aforesaid judgment of the Hon'ble Apex Court came on 25.7.2017 and the petitioner was permitted to revert back on the post of Shiksha Mitra in same institution till 10.8.2017. Further, the petitioner went on leave on 11.8.2017 on account of illness of her child and after her child recovered from illness on 8.5.2018, she requested to submit her joining at the institution but Head Master of the institution refused to permit her joining. In the counter affidavit, vide para-13, it has been categorically indicated that after the judgment of the Hon'ble Apex Court on 25.7.2017, the petitioner worked only for 16 days and from 11.8.2017, she never turned up to discharge her duties nor submitted any application for leave. In para-14 of the counter affidavit, it has been indicated that the post of Shiksha Mitra is based on honourarium, therefore, it was not permissible under the law to allow the petitioner to join on the post of Shiksha Mitra after such a long gap without there being any sanctioned leave or permission from the competent authority. Further, there was no provision for leave without pay in respect of Shiksha Mitras. The petitioner could not deny the aforesaid submissions of counter affidavit by filing rejoinder affidavit and reply to paras-13 & 14 of the counter affidavit has been given in paras-14 & 15 of the rejoinder affidavit. The petitioner could not cite any provision of law even during the course of argument to the effect that Shiksha Mitras could have been given leave without pay. Therefore, the petitioner could have not been treated "Working Shiksha Mitra" at the time of providing her benefit of weightage in terms of the judgment of Hon'ble Apex Court in re; Anand Kumar Yadav (supra). Learned counsel for the petitioner has contended that the petitioner was qualified for the post of Assistant Teacher as she got 100 marks out of 150 marks in Assistant Teachers Recruitment Examination, 2019 and declared passed. She was having B.T.C. certificate. Since the petitioner was not given weightage of her past services, therefore, she could not finally get through. The reason for not providing weightage is that the weightage has been given to only those Shiksha Mitras, who were working Shiksha Mitras but the petitioner was not working Shiksha Mitra as she was absconding from job without any leave, therefore, such weightage could have not been provided to her. Learned counsel for the petitioner has drawn attention of this Court towards the definition of "Shiksha Mitra", which is as under:-

""Shiksha Mitras" means a person working as such in junior basic schools run by Basic Shiksha Parishad under the Government Orders prior to the commencement of Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011.

Or a person who has been a Shiksha Mitra and appointed as an Assistant Teacher in Junior Basic Schools run by Basic Shiksha Parishad and reverted to work as Shiksha Mitra in pursuance of the judgement of the Apex Court in SLP No.32599 of 2015, State of U.P. and Others Vs. Anand Kumar Yadav and Others."

On the strength of aforesaid definition, learned counsel for the petitioner has submitted that the petitioner is fully covered with the aforesaid definition as she has been a Shiksha Mitra and appointed as Assistant Teacher in an institution in question and reverted to work as Shiksha Mitra pursuant to the judgment of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra). Therefore, her absence from service w.e.f. 11.8.2017 may not disentitle her to be treated as Shiksha Mitra.

Sri Ran Vijay Singh, learned Addl. Chief Standing Counsel has submitted with vehemence that since the petitioner had abandoned her job without getting the leave sanctioned from the competent authority, therefore, she may not be treated as Shiksha Mitra. Undoubtedly, she has been Shiksha Mitra and was appointed as Assistant Teacher in an institution in question, thereafter reverted to as Shiksha Mitra pursuant to the judgment of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra) but after serving 16 days as Shiksha Mitra, she abandoned her job, therefore she cannot claim, legally to be provided weightage of past services. At least she should be serving Shiksha Mitra. He has cited the judgment of the Hon'ble Supreme Court in re; Vijay S. Sathaye v. Indian Airlines Limited and Others, (2013) 10 SCC 253, referring paras 12, 14 & 16, which are as under:-

"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.

(emphasis supplied)

14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as 'retrenchment' from service. (See: State of Haryana v. Om Prakash, (1998) 8 SCC 733)

(emphasis supplied)

16. In Syndicate bank v. Staff Assn., (2000) 5 SCC 65 and Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529, this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant, (2006) 11 SCC 42, Chief Engineer (Construction) v. Keshava Rao, (2005) 11 SCC 229 and Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462."

(emphasis supplied)

On the strength of aforesaid judgment of the Hon'ble Apex Court, Sri Ran Vijay Singh has submitted that the petitioner was absent without getting leave, therefore she should be treated to have resigned and ceased to be in service. When she was no more in service at the time when the weightage of past services was to be awarded, there was no question of awarding such weightage to the petitioner. Sri Ran Vijay Singh has also submitted that the definition of Shiksha Mitra under Clause 2 (V) of the Rules, 1981 (as amended) rightly indicates only those Shiksha Mitras would be given weightage if they are working as Shiksha Mitra after being reverted on such post pursuant to the direction of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra). The Shiksha Mitras, who are not functioning as Shiksha Mitra at particular point of time when such weightage was to be awarded, how can it be presumed that such person is willing to take benefit of the direction of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra).

He has further submitted that had it been a short period, it could have been understood but the petitioner was absconding from duties of Shiksha Mitra from 11.8.2017 and weightage of past services was to be awarded in the month of May, 2020 when the petitioner was not Shiksha Mitra for the last about three years. Therefore, the present petitioner may not be given any relief as prayed in the writ petition and the writ petition may be dismissed with costs.

Having heard learned counsel for the parties and having perused the material available on record and the dictum of the Hon'ble Apex Court in re; Vijay S. Sathaye (supra), I am of the considered opinion that the definition of Shiksha Mitra under Clause 2 (V) of the Rules, 1981 (as amended) is very clear and purpose thereof is laudable as only those Shiksha Mitras can be given weightage of past services, who are working as Shiksha Mitra after being reverted as Shiksha Mitra from the post of Assistant Teacher in compliance of the dictum of Hon'ble Apex Court in re; Anand Kumar Yadav (supra). Such benefit cannot be provided to those Shiksha Mitras, who are not Shiksha Mitra for substantial period at the time when such benefit was to be provided. In the present case, it is admission on the part of the petitioner that she has not discharged the duties of Shiksha Mitra since 11.8.2017. She was not on valid leave. Shiksha Mitras are paid honourarium. No provision of law has been cited or shown by the learned counsel for the petitioner to the effect that Shiksha Mitras can be granted leave without pay for substantially long period.

Therefore, I do not find any infirmity or illegality in not providing weightage of past services to the petitioner in terms of Clause 2 (V) of the Rules, 1981, which has been amended in compliance of the dictum of Hon'ble Apex Court in re; Anand Kumar Yadav (supra). Accordingly, the writ petition is dismissed being devoid of merits.

Order Date :- 27.1.2021

RBS/-