Hemlata vs State Of U.P. And 3 Others
2023 Latest Caselaw 2000 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on : 07.09.2022
 
Judgment delivered on : 19.01.2023
 
Court No. - 18
 

 
Case :- WRIT - A No. - 19656 of 2019
 

 
Petitioner :- Hemlata
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Seemant Singh,Arimardan Yadav,Jadu Nandan Yadav,Man Bahadur Singh
 
Counsel for Respondent :- C.S.C.,Anil Kumar Bind,Shashi Kant Verma
 

 
Hon'ble Ashutosh Srivastava,J.

1. Heard Shri Man Bahadur Singh, learned counsel for the petitioner, Shri Shashi Kant Verma, learned counsel representing respondent Nos. 2 & 3, Shri Anil Kumar Bind, learned counsel representing respondent No. 4 and learned Standing Counsel who has accepted notice on behalf of State-respondent No. 1.

2. The writ petitioner, who had been working as Shiksha Mitra in Primary School, Nibiya, Block Rajepur, Farrukhabad has approached this Court aggrieved by the order dated 12.9.2019 passed by the District Basic Education Officer, Farrukhabad, as also the order dated 17.9.2019 passed by the Nyay Panchayat Resource Coordinator, Dahiliya, Block Rajepur, Farrukhabad whereby the services of the petitioner has been terminated. A prayer to reinstate the petitioner on the post of Siksha Mitra in the Institution in question with all consequential benefits has also been made.

3. It is contended by learned counsel for the petitioner that the petitioner was appointed as Shiksha Mitra on 20.11.2004 pursuant to the resolution dated 18.1.2004 of the Gram Panchayat Barakeshav Mohamdabad, Farrukhabad and Secretary/Head Master, Kanya Prathamik Vidhyalay, Barakeshav, Block Mohamdabad, Farrukhabad and she joined the Institution in question on 20.11.2004. Subsequently, the petitioner was absorbed on the substantive post of Assistant Teacher in the Institution vide appointment Order dated 31.7.2014. The absorption of the petitioner as Assistant Teacher as also other similarly circumstance Assistant Teachers from the post of Shiksha Mitra came to be questioned in Writ Petition No. 34833 of 2015 and this Court found the absorption to be illegal vide order dated 12.9.2015. The order of this Court was upheld by the Apex Court vide its judgment and order dated 25.7.2017 passed in Civil Appeal No. 9529 of 2017. As a consequence of the above proceedings the petitioner was reverted to her original post of Shiksha Mitra and she continued on the post of Shiksha Mitra.

4. It is next contended that an inspection was carried out by the Chief Development Officer of the Institution on 3.9.2019 and found certain irregularities committed by the petitioner such as she had reported late, not utilized the composite grant properly talks on phone, uses WhatsApp and does not work as a result of which students have been found weak in language and Mathematics. The petitioner was served with a show cause notice on 7.9.2019. The reply of the petitioner to the show cause notice was accepted either by the Head Master or the Block Education Officer. Ultimately, by the impugned orders the services of the petitioner have been terminated.

5. Learned counsel for the petitioner has challenged the impugned orders primarily on the ground that the petitioner has not been permitted to submit her reply and the petitioner has been held guilty without being heard and her services terminated. It is also submitted that the order of termination could not have been passed by the Nyay Panchayat Resource Coordinator, Dahiliya Block Rajepur, Farrukhabad and not by the Block Education Officer, Rajepur, Farrukhabad. It is also contended that the petitioner was working as Shiksha Mitra under Government Order dated 26.5.1999 which provides that contract of Shiksha Mitra can be terminated by 2/3rd majority written resolution passed by the Village Education Committee. In the absence of any resolution by the Village Education Committee, the termination order at the instance of the District Basic Education Officer is per se illegal and liable to be set aside.

6. A counter affidavit has been filed on behalf of the respondent Nos. 2 & 3 wherein it has been stated that the appointment of the petitioner is purely contractual and if it is the term and condition of appointment that if the services are not found satisfactory the same shall be terminated. The Village Education Committee vide its resolution dated 17.9.2019 resolved to terminate the services of the petitioner whereafter the impugned orders were passed. It is also submitted that the State Government vide Government Order dated 2.6.2010 has stopped new appointments to the post of Shiksha Mitra.

7. A counter affidavit has also been filed on behalf of the respondent No. 4 on the same lines as the respondent Nos. 2 & 3.

8. In the rejoinder affidavit the petitioner has reiterated that the contract of Shiksha Mitra can be terminated only by 2/3rd majority written resolution passed by the Gram Shiksha Samiti in terms of Para 9 of the Government Order dated 26.5.1999. No such resolution has been passed by the Gram Shiksha Samiti, Nibiya and simply the termination order has been passed by the Nyay Panchayat Resources Coordinator.

9. Having heard the respective learned counsel of the parties and having perused the record, the Court has to rule on the question as to whether the respondents are justified in terminating the services of the petitioner in the manner as has been done under the impugned orders.

10. The petitioner was admittedly working as a Shiksha Mitra in the Institution in question. The services of the petitioner are governed by the Government Order dated 26.5.1999. Under the Government Order dated 26.05.1999, the contract of a Shiksha Mitra can be terminated only by 2/3rd majority written resolution passed by the Village Education Committee. The resolution dated 17.09.2019 filed as Annexure-CA-1 to the counter affidavit of the respondent Nos. 2 & 3 can hardly said to be a resolution for the purposes of terminating the services of the petitioner. A perusal of the recitals of the said document reveals that the District Basic Education Officer, Farrukhabad, under his order dated 12.09.2019 addressed to the Block Education Officer, Rajepur, Farrukhabad had already taken a decision to terminate the services of the petitioner as Shikha Mitra and the resolution came to be passed only subsequently whereas in the opinion of the Court the Village Education Committee ought to have resolved to terminate the services of the petitioner whereafter the termination order was required to be passed. Further the Court finds that the so called resolution dated 17.09.2019 filed as Annexure-C.A.-1 is an interpolated document in as much as the sentence "Shiksha Mitra Hemlata Ki Sewa Samapti ki Karyawahi Ka ham Sabhi Sadasyagan sahmat hote hue samarthan karte Hai" appears to have been added subsequently as is evident from the photocopy of the said document filed as Annexure-8 to the Writ Petition. The Court also finds that the petitioner was not given opportunity to submit her explanation to the show cause notice dated 07.09.2019 and the impugned orders to that extent suffer from the vice of non compliance of elementary principles of Audi Alteram Partem.

11. For the reasons stated herein above, the impugned orders dated 12.09.2019 passed by the District Basic Education Officer, Farrukhabad, as also the order dated 17.09.2019 passed by the Nyay Panchayat Resource Coordinator, Dahiliya, Block-Rajepur, Farrukhabad whereby the services of the petitioner have been terminated cannot be sustained and are hereby quashed. The Writ Petition stands allowed. Consequently, the petitioner shall stand reinstated on the post of Shikha Mitra in Primary, School-Nibiya, Block-Rajepur, Farrukhabad with all consequential benefits.

Order Date :- 19.01.2023

Ravi Prakash