Ashok Kumar Upadhyay vs The State Of Madhya Pradesh
2022 Latest Caselaw 1463 MP

                              1




 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                           BEFORE
           HON'BLE SHRI JUSTICE ATUL SREEDHARAN

                ON THE 2nd OF FEBRUARY 2022




                WRIT PETITION No. 2413 of 2022

     Between:-
     ASHOK KUMAR UPADHYAY S/O LATE SHRI RAM KRISHNA
     UPADHYAY , AGED ABOUT 56 YEARS, OCCUPATION:
1.
     PRINCIPAL PANDIT VISHNU DUTT GOVT. HIGHER SEC.
     SCHOOL SIHORE DIST. JABALPUR MP (MADHYA PRADESH)
     DR.S.N. SHRIVASTAV S/O SHRI S.B. SHRIVASTAV , AGED
     ABOUT 56 YEARS, OCCUPATION: PRINCIPAL GOVT. HIGHER
2.
     SECONDARY SCHOOL MEDICAL CAMPUS, DISTRICT JABALPUR
     M.P. (MADHYA PRADESH)
     RAJKUMAR BADHAN S/O SHRI LAXMAN RAM BADHAN , AGED
     ABOUT 56 YEARS, OCCUPATION: PRINCIPAL GOVT. HIGH
3.
     SCHOOL     MEHGAWAN    PANAGAR   DISTRICT    JABALPUR
     (MADHYA PRADESH)
     SMT ABHA WANKHEDE W/O SHRI VINOD WANKHEDE , AGED
     ABOUT 47 YEARS, OCCUPATION: PRINCIPAL GOVT HIGH
4.
     SCHOOL BAJRANG NAGAR RANJHI DISTRICT JABALPUR
     (MADHYA PRADESH)
     SMT.RUKMANI KANOJIA W/O RAJ KUMAR KANOJIA , AGED
5.   ABOUT 54 YEARS, OCCUPATION: PRINCIPAL GOVT.HIGH
     SCHOOL VEHICLE STATE RANJHI (MADHYA PRADESH)
     G.P.JHARIYA S/O LATE S.L. JHARIYA , AGED ABOUT 53
6.   YEARS, OCCUPATION: PRINCIPAL GOVT.HIGHER SECONDARY
     SCHOOL DEORI RAJVAI MAJHOLI (MADHYA PRADESH)
                                            .....PETITIONER
     (BY SHRI VIJAY KUMAR SHUKLA, LEARNED COUNSEL)

     AND

     THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
1.   SECRETARY SCHOOL EDUCATION DEPT. VALLABH BHAWAN
     BHOPAL (MADHYA PRADESH)
     STATE OF MADHYA PRADESH THROUGH DIRECTORATE OF
2.   PUBLIC INSTRUCTIONS GAUTAM NAGAR BHOPAL (MADHYA
     PRADESH)
     COMMISSIONER PUBLIC INSTRUCTIONS DISTRICT BHOPAL
3.
     (MADHYA PRADESH)
     DISTRICT EDUCATION OFFICER SCHOOL EDUCATION
4.
     DEPARTMENT DISTRICT JABALPUR (MADHYA PRADESH)
     RAMDAS MITTAL S/O NOTKNOWN OCCUPATION: PRINCIPAL
5.   GOVT.HIGHER SECONDARY SCHOOL EXCELLENCE MEHGAON
     BHIND (MADHYA PRADESH)
                                     2                     W.P. No.2413/2022




   RAJESH KUMAR GOYAL S/O NOT KNOWN OCCUPATION:
6. PRINCIPAL GOVT.HIGHER SECONDARY SCHOOL JETHWAY
   (MADHYA PRADESH)
   ANITA NAMDEO D/O NOT KNOWN OCCUPATION: PRINCIPAL
7. GOVT.HIGHER SECONDARY SCHOOL JETHWAY (MADHYA
   PRADESH)
   SHRI S.K.GUPTA S/O NOTKNOWN OCCUPATION: PRINCIPAL
8.
   GOVT.HIGH SCHOOL GARRA (MADHYA PRADESH)
   RAJKUMAR AADE S/O NOT KNOWN OCCUPATION: PRINCIPAL
9. GOVT.HIGHER       SECONDARY       SCHOOL        EXCELLENCE
   KHAIRLANJI (MADHYA PRADESH)
   LAXMIKANT MISHRA S/O NOT KNOWN OCCUPATION:
10.PRINCIPAL GOVT.HIGH SCHOOL MOYA CHHINDWARA
   (MADHYA PRADESH)
   SHIVPAL MANJHI S/O NOT KNOWN OCCUPATION: PRINCIPAL
11.
   GOVT.HIGH SCHOOL NAGOD SATNA (MADHYA PRADESH)
   RAMPRASAD SINGH S/O NOT KNOWN OCCUPATION:
12.PRINCIPAL GOVT.HIGHER SECONDARY MODEL SCHOOL
   PUSHPRAJGARH ANUPPUR (MADHYA PRADESH)
   CHANDRA      SHEKHAR     BARETHE      S/O      NOT   KNOWN
13.OCCUPATION:     PRINCIPAL     GOVT.HIGHER        SECONDARY
   SCHOOL PUNJAPURA DEWAS (MADHYA PRADESH)
                                             .....RESPONDENTS
   (BY SHRI AHISH ANAND BARNARD, LEARNED DEPUTY
   ADVOCATE GENERAL)
              (Heard through Video Conferencing)
This petition coming on for admission and interim relief this day, the

court passed the following:

                                ORDER

The petitioners are all Principals of Government High

Schools or Higher Secondary Schools. On 26.10.2021, the

Directorate of public instructions invited applications

from Principals working in High Schools and Higher

Secondary Schools under the School Education

Department or the tribal department , for the post of

Principals in 276 well equipped school s in the State

under the Government's ambitious plan called the "CM-

Rise Vidyalaya", from the academic session 2021 -2022.

The 238 Principals working in high schools and higher

secondary schools applied through online portal for the

post of Principals in the CM -Rise Vidyalaya, out of

which, 131 candidates were shortlisted for interview and

out of them, only 69 candidates name were shortlisted

for training. Out of these 69, the petitioners submit that

nine candidates whose names were not there in the list

of 131 candidates, were included.

2. The short point in this case is that the petitioners are

allegedly aggrieved by the so cal led change in the rules

of the game midway after its commencement. The first

advertisement was on 25.08.2021. The purpose and

intention of the State behind the advertisement was to

provide in the CM-Rise schools, education from KG to

12 t h standard in such schools which would have

excellent infrastructure with instructions being

imparted in English and Hindi medium.

3. Besides, the curriculum would also include teaching in

computer, instructions in yoga, exposure to games and

sports and involvement in cultural act ivities like music

and dance. The intention of the State was to have

energetic and resourceful Vice-Principals and

Principals, to man these schools and administer them in

order to ensure the enhancement of quality of education,

development of character and all round improvem ent in

the quality of students studying there .

4. The intention of the State is laudable. From the

advertisement , it appears that the State has finally

woken up to the importance of quality education in the

State rather than only imparting education for th e

purpose of fulfilling a formality. The second

advertisement was issued on 26.10.2021 in which, the

learned counsel for the petitioner has drawn the

attention of this Court to the post -script in the

advertisement which read that only Principals from the

tribal department schools under the tribal department,

high school and higher secondary schools under the

department of education will be eligible to apply.

5. Learned counsel for the petitioner has drawn the

attention of this Court to page 111 where even Lecturers

and UMS were considered in the selection process for the

post of Vice-Principals in the CM-Rise school. The

advertisement dated 25.08.2021 which the learned

counsel for the petitioner has shown as the second

advertisement, is actually first advertisement. In that

advertisement, the learned counsel for the petitioner has

objected to the inclusion of Vice -Principals of the

existing schools also, who may be considered for heading

the schools as Principals and Vice -Principals.

6. Learned counsel for the petitioners has also argued that

the changes in the advertisement midway the

recruitment process was impermissible and that the

same was not in accordance with the rules. In order to

buttress his submissions, learned counsel for the

petitioners has drawn the attention of this Court to the

judgement of a co-ordinate Bench passed in W.P.

No.3687/2013 (Neetu Dubey Vs. State of M.P.) whereby

the learned co-ordinate Bench, by order dated

09.04.2015, had allowed the petition of the petitioner

Neetu Dubey who had participated in the recruitment

process. In th at case, in January 2021, advertisement

was issued for recruitment of the post of contract

teacher grade-I, II and III. The petitioner Neetu Dubey

was declared qualified. However, when she approached

the respondents with the original documents she was not

permitted to appear in the recruitment process. Learned

co-ordinate Bench in paragraph 7 has held that the

respondents have failed to show that either as per the

recruitment rules or as per the eligibili ty examination

rules of 2011 the petitioner was ineligible. It further held

that at the time of conducting the eligibility examination

and at the time of issuance of the advertisement the

subsequent circular of 27.03.2012 , on the basis of which

she was held as ineligible, was not in existence and

therefore, learned single Judge held that the said

circular holding her ineligible was issued after the

commencement of the recruitment process and as

nothing was pointed out by the respondents to show that

the petition er was lacking in any eligibility condition,

the reliance of the respondents on the circular of

27.03.2012 to hold her ineligible was impermissible. In

paragraph 8, the learned single Judge held that the rules

of the game cannot be changed after the recrui tment

process.

7. The said judgment would not be applicable in the facts-

circumstances of the present case. The case before this court is

not one of a fresh recruitment process for an employment under

the State. All these petitioners are working on the posts of

Principals of the High Schools or the Higher Secondary Schools

and no averment or argument has been put forth that those who

would be selected to become Principals in the C. M. Rise Schools

would either be getting salaries, which are higher than the

petitioners herein or that they would be in a far more

advantageous position as Principals or Vice Principals. Thus,

what has been contemplated by the said advertisements is not a

fresh recruitment process giving employment to any of the

petitioners.

8. The petitioners, as stated earlier herein above, are already

working on the posts of Principals of various Government schools.

The contention of the petitioners that they are prejudiced by the

new conditions being brought in by subsequent advertisements

is untenable. The petitioners have not demonstrated that they

have a right to be selected as Principals of the C. M. Rise Schools.

There is no provision on the basis of which they can claim such a

right. Therefore, the question of their locus standi to challenge the

very process of selection of Principals and Vice Principals for the

C. M. Rise Schools is under doubt.

9. Article 21-A of the Constitution provides for free and compulsory

education for children in this country up to the age of 14. The

Supreme Court in State of Tamilnadu and others v. K. Shyam

Sunder and others (2011) 8 SCC 737 held in paragraph no.21

that the right of a child should not be restricted only to free and

compulsory education but should be extended to have quality

education without any discrimination on the grounds of its

economic, social and cultural backgrounds. Under Article 21-A,

all endeavours carried out by the State have as its focal point the

child who has to receive compulsory education till the age of 14.

In fact, even before Article 21A came into existence, the Supreme

Court has held in various cases that the Right to Education is a

fundamental right under Article 21.

10. The process of selection for the Principals and Vice Principals for

the C. M. Rise Schools is not for career advancement prospects of

the existing Principals but to ensure greater quality of education

for the students in the State. To attain that end, the discretion is

entirely of the State as to who it must select from the existing pool

of Principals to man the posts of Principals and Vice Principals of

the C. M. Rise Schools and that power and authority must be

unfettered if the State is expected to achieve the end of better

education for the students in the State.

11. Mere arbitrary action of the State cannot sustain a petition under

Article 226. The petitioner, who seeks to sustain such a petition

and invokes the plenary powers of the Court must first of all

demonstrate how the arbitrary action of the State has resulted in

the infraction of his fundamental or legal right. Merely because

an act of the State is arbitrary, where it has not resulted in the

infraction of any fundamental or legal right of the petitioner, it

would be impermissible for the court to exercise jurisdiction

under Article 226 only on the ground that the said action is

arbitrary. In the absence of any legal or constitutional injury to

the petitioners, the court cannot carry out a roving enquiry under

Article 226.

12. Under the circumstances, in view of what has been argued,

considered and held by this court herein above, the petition is

dismissed.

(Atul Sreedharan) Judge pnm/ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2022.02.03 10:51:19 +05'30' Adobe Reader version: 11.0.8