Rama Shukla vs State Of U.P. Through Secy. Deptt. ...
2022 Latest Caselaw 21951 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	Court No. - 6
 
Case :- WRIT - A No. - 42 of 2014
 
Petitioner :- Rama Shukla
 
Respondent :- State Of U.P. Through Secy. Deptt. Of Basic Edu. Lko. And Ors.
 
Counsel for Petitioner :- Shyam Mohan
 
Counsel for Respondent :- C.S.C.,C.B.Singh
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner, Sri Neeraj Chaurasia, learned Standing counsel appearing for the State-respondents and Sri C.B.Singh, learned counsel appearing for the respondent no. 4.

2. Instant writ petition has been filed praying for the following main reliefs:-

"(i) Issue a writ, order or direction or writ in the nature of certioari quashing the order dated 30th October, 2013, passed by the District Magistrate, District Balrampur cancelling the selection of appointment of the petitioner whose name mentioned at S.No. 24 in the order contained in Annexure No. 1 to the writ petition so far as with respect to the petitioner.

(ii) Issue a writ, order or direction or writ in the nature of mandamus directing the respondents to treat the petitioner in service and be allowed to work and be paid salary of the post of Shiksha Mitra and other consequential benefits, arises after quashing the order dated 30th October, 2013."

3. The case set forth by the petitioner is that an advertisement had been issued in the year 2018 inviting applications for the post of Shiksha Mitra in Gaon Panchayat Saikhuee, Post Rampur Banghusara, District Balrampur. Learned counsel for the petitioner contends that the procedure to be followed for making appointment on the post of Shiksha Mitra is that after an advertisement is issued inviting applications from candidates who belong to the same village in question, a select panel is drawn up by the Gram Shiksha Samiti on the basis of the marks obtained in the High School and Intermediate examinations, preference to be given for any other higher qualification and the panel is to be sent for approval through the concerned B.S.A. to the District Education Selection Committee for its approval. It is only after the approval by the said committee that a person is to appointed as a Shiksha Mitra.

4. The contention is that a select panel was drawn up by the Gram Shiksha Samiti in which the name of the petitioner finds place at serial no. 2 against proposal no. 3. The name of one Ms. Nidhi Tiwari finds place at serial no. 1. A copy of the said panel is annexure 2 to the petition. It is also contended that the said select panel received the approval of the District Education Selection Committee and Ms. Nidhi Tiwari had been appointed as a Shiksha Mitra on 28.01.2009, a copy of which is annexure 4 to the petition.

5. As Ms. Nidhi Tiwari did not belong to the village in question but had submitted as false domicile certificate in support of her claim of domicile as such initially the petitioner submitted a complaint and thereafter was constrained to file a Writ Petition No. 809 (MB) of 2009 in re: Rama Shukla and another vs State of U.P. and others before this court challenging the domicile certificate that had been issued to Ms. Nidhi Tiwari. A Division Bench of this Court vide the judgement and order dated 26.02.2010, a copy of which is annexure 5 to the petition, set aside the domicile certificate of Ms. Nidhi Tiwari. It is contended that the said order was also affirmed with the dismissal of the Special Leave Petition filed by Ms. Nidhi Tiwari.

6. As the domicile certificate of Ms. Nidhi Tiwari had been cancelled and her name found place at serial no. 1 in the select panel while the name of the petitioner found place at serial no. 2 consequently the petitioner staked her claim for appointment on the basis of the said select panel. When the claim of the petitioner was not considered for appointment as a Shiksha Mitra she was again constrained to approach this Court by filing Writ Petition No. 7816 of 2010 and this Court vide the order dated 12.11.2010, a copy of which is annexure 10 to the petition, permitted the petitioner to make a fresh representation to the District Magistrate who was required to look into the matter.

7. Being aggrieved, the petitioner filed Special Appeal No. 870 of 2010 in re: Rama Shukla vs State of U.P. and others. A Division Bench of this Court vide the order dated 21.12.2010, a copy of which is annexure 11 to the petition, directed the District Magistrate, Balrampur to ensure the appointment of the appellant (Smt Rama Shukla the petitioner) or show cause as to why the appellant has not been given appointment.

8. In pursuance thereof, through an order dated 20.01.2011, a copy of which is annexure 12 to the petition, the petitioner was appointed as a Shiksha Mitra in the Primary School Jurikuniwa, District Balrampur, a copy of which is annexure 12 to the petition.

9. However, during the time, the petitioner was staking her claim for appointment as Shiksha Mitra, a Government order dated 02.06.2010 had been issued by the respondent-State banning the fresh appointment of Shiksha Mitras with immediate effect. The said Government order categorically indicated that no fresh appointment be made as Shiksha Mitra.

10. The petitioner claims that she was continuing as a Shiksha Mitra when the impugned order dated 30.12.2013, a copy of which is annexure 1 to he petition, was passed by the respondents whereby placing reliance on a full bench judgement of this Court in the case of Km. Sandhya Singh and others vs State of U.P. and others passed in Writ A No. 26189 of 2012 decided on 08.08.2013, a copy of which is annexure 17 to the petition and the Government order dated 02.06.2010 , the services of the petitioner were dispensed with.

11. The argument is that the judgement of Km. Sandhya Singh (supra) would not be applicable in the facts and circumstances of the instant case in as much as though the respondents have indicated about the ban having been imposed on 02.06.2010 pertaining to no fresh appointment on the post of Shiksha Mitra to be made yet the said ban would not be operative in the case of petitioner as she has been appointed on the basis of a panel which was prepared and approved in the year 2008 and one of the selected candidates of the said panel namely Ms. Nidhi Tiwari had been appointed prior to the said ban coming into force i.e. on 28.01.2009 and as the appointment of Ms. Nidhi Tiwari had been found to be void on account of the cancellation of a domicile certificate as such the petitioner has claimed her placement in the said select panel. Further, though the services of the petitioner had been terminated yet as per the specific averments made in paragraph 14 of the rejoinder affidavit to the counter counter affidavit filed on behalf of the respondent no. 4 other selected Shiksha Mitra have been allowed to continue in the district Shravasti and as such it is argued, the petitioner alone cannot be terminated.

12. On the other hand, Shri Neeraj Chaurasia, learned counsel appearing for the respondents no. 1 and 2 contends that the matter in issue is squarely covered by the full bench judgement of Km. Sandhya (supra) in as much as the full bench has specifically held that even those persons whose names were recommended prior to 02.06.2010 i.e the date of the Government order by which the ban has been imposed, will not acquire a right to claim a direction for appointment as a Shiksha Mitra.

13. He thus contends that with the coming into force of the ban on 02.06.2010 and following the law laid down by the full bench in the aforesaid case what is apparent is that despite her proposal the petitioner has not acquired any indefeasible right for her appointment as a Shiksha Mitra and therefore the termination order has been correctly passed in the eyes of law.

14. The further argument of Shri Chaurasia is that after the promulgation of the Right to Education Act such untrained teachers like the petitioner cannot be allowed to continue as a Shiksha Mitra.

15. Considering that the petitioner was claiming her appointment/continuance as a Shiksha Mitra on the basis of select panel drawn up by the Gaon Shiksha Samiti in which the name of the petitioner finds place at Serial No. 2 and which panel had been approved by the District Education Selection Committee, the Court vide order dated 27.09.2022 had required the respondents to file an affidavit as to whether the approval of the Committee was to the entire panel sent by the Gaon Shiksha Samiti or only confined to Ms. Nidhi Tiwari.

16. Further, as the argument of learned counsel for the petitioner was that other persons are continuing in District Sharawasti as such, the respondents were also required to indicate as to whether other persons whose cases are covered whose appointment subsequent to the ban imposed by the Government order are continuing or not.

17. In pursuance thereof, a supplementary counter affidavit dated 04.12.2022 has been filed per which the proposal of the Gaon Shiksha Samiti of 18th November, 2008 which also contains the name of Smt. Nidhi Tiwari as well as the petitioner at Serial No. 1 & 2 of the said proposal was filed as annexure 2 to the said affidavit. The approval to the said proposal has also been filed as annexure 3 to the said affidavit which is an approval dated 28.01.2009 which indicates that it is Ms. Nidhi Tiwari who has been approved for appointment. Thus, it is apparent that name of the petitioner was never approved for appointment despite the panel having been sent by the Gaon Shiksha Samiti. So far as continuance of other Shiksha Mitras in District Sharawasti is concerned, no reply has been given in the said affidavit.

18. Supplementary rejoinder affidavit has been filed today through which the learned counsel for the petitioner has brought on record a judgment passed by Division Bench of this Court in Special Appeal No. 61 of 2014 Inre; Smt Usha Kumari Vs. State of U.P and 4 Ors decided on 15.01.2014, a copy of which is annexure SRA 2 to the said affidavit.

19. Placing reliance on the judgment of Smt. Usha Kumari (supra) the argument of learned counsel for the petitioner is that the case of the petitioner cannot be considered to be a fresh appointment so as to attract the ban as imposed by means of the Government order dated 02.06.2010. He submits that it is only on account of the illegal action on the part of the respondents that the piquant situation has arisen in the instant case inasmuch as despite the name of the petitioner being borne on the panel sent by the District Level Committee by the Gaon Shiksha Samiti at Serial No. 2 and the domicile of Ms. Nidhi Tiwari who was appointed prior to the ban having been found illegal by the Division Bench of this Court the petitioner was not appointed. He submits that the petitioner was only appointed subsequent to the order passed by the Division Bench of this Court dated 21.12.2021 and consequently, the ban as imposed to the Government order dated 02.06.2010 would not be applicable. He also contends that even the Full Bench judgment of this Court in the case of Sandhya Singh (supra) would not be applicable.

20. Having heard the learned counsel appearing for the contesting parties and having perused the records what emerges is that Ms. Nidhi Tiwari and the petitioner along with several other were recommended by the Gaon Shiksha Samiti for appointment of Shiksha Mitra vide proposal of 18th November, 2008. The name of the petitioner was admittedly at Serial No. 2 in the said proposal. The said scheme stipulates for an approval of the District Education Selection Committee to the proposal of Gaon Shiksha Samiti which approval has been brought on record by means of the supplementary counter affidavit dated 04.12.2022, a copy of which is annexure 3 to the petition, dated 28.01.2009. The said approval indicates that it was Ms. Nidhi Tiwari who has been approved for appointment as Shiksha Mitra and not the petitioner. Admittedly, the name of the petitioner was never approved for appointment. After a series of litigation, the domicile certificate of Ms. Nidhi Tiwari was found to be bad in the eyes of law and has been set aside. The petitioner staked her claim for being appointed as Shiksha Mitra which found favour with the Division Bench of this Court and a mandamus has been issued to the authorities to appoint the petitioner and in pursuance thereof, the petitioner was appointed as Shiksha Mitra vide order dated 20.01.2021. Admittedly, the said appointment order was issued in pursuance to the direction issued by the Division Bench of this Court but at the same time before the said direction could be issued by the Division Bench of this Court, a Government order dated 02.06.2010 had been issued banning any appointment on the post of Shiksha Mitra. The ban as imposed by the Government order dated 02.06.2010 has been considered by the Full Bench of this Court in the case of Sandhya Singh (supra).

21. The questions before the Full Bench were as follows:-

(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.

22. The controversy involved in the instant petition is covered by question (A).

23. The Full Bench of this Court has answered question (A) as under:-

"With regard to question (A), in view of the above discussion, we are of the opinion that the petitioners were not duly selected and even if they were selected, the selection will not confer a right upon them to claim appointment and for being sent for training as Shiksha Mitras in view of the ban imposed by the State Government by the GO dated 2nd of June, 2010. In other words, persons whose names even if recommended prior to 2.6.2010, will not acquire any right to claim a direction for appointment as Shiksha Mitra."

24. From a perusal of the question (A) as was considered by the Full Bench of this Court in the case of Sandhya Singh (supra) it emerges that the full Bench was considering as to whether a mere selection on a date prior to 02.06.2010 will confer the right upon an 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 itself having been dropped by the State Government. The question has been answered by the Full Bench by holding that even if the petitioners were selected, the selection will not confer the right upon them to claim appointment and for being sent for training as Shiksha Mitra in view of ban imposed by the State Government vide Government order dated 02.06.2010 and in other words, persons whose names even if recommended prior to 02.06.2010, will not acquire any right to claim a direction for appointment as Shiksha Mitra.

25. Being armed with the aforesaid proposition of law as enunciated by the Full Bench of this Court, the Court now proceeds to consider as to whether the termination of the petitioner vide order dated 30.10.2013 is illegal.

26. From the facts as have been set forth above it is apparent that the petitioner was never appointed prior to the ban imposed vide Government order dated 02.06.2010. The name of the petitioner was contained in the proposal dated 18.11.2008 of the Gaon Sabha Samiti but her name was never approved for appointment rather it was the person whose name was contained at Serial No. 1 to the proposal namely Ms. Nidhi Tiwari whose name was approved on 28.01.2009 However, upon her domicile certificate being found to be bad, her appointment has been cancelled. Thus, it is apparent that the once the petitioner was never appointed prior to 02.06.2010 and neither was her name even recommended prior to 02.06.2010 consequently, keeping in view the law laid down by the Full Bench of this Court in the case of Sandhya Singh (supra) the petitioner could not have been validly appointed even in terms of the directions issued by the Division Bench of this Court dated 21.12.2010 i.e subsequent to the ban. The Division Bench having itself not considered the ban as such, the respondents have not erred in dispensing with the services of the petitioner by means of the order dated 30.10.2013, considering the Full Bench judgment of this Court and her appointment itself being in the teeth of the ban dated 02.06.2010. Hence, there is no illegality in the impugned termination order.

27. So far as the Division Bench judgment of this Court in the case of Smt. Usha Kumari (supra) is concerned, suffice it to state that the Division Bench of this Court has not considered the Full Bench dated 08.08.2013 which had been passed prior to the Division Bench judgment dated 26.02.2010. As such, it is the Full Bench judgment which would be applicable in the instant case.

28. So far as the ground of other persons continuing as Shiksha Mitra in the District of Sharawasti is concerned, suffice it to state that it is settled proposition of law that an illegality cannot be perpetuated.

29. Keeping in view the aforesaid discussion, no case for interference is made. The writ petition is accordingly dismissed.

Order Date :- 20.12.2022

Pachhere/-