Devendra Kumar Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 19563 MP

Madhya Pradesh High Court

Devendra Kumar Sharma vs The State Of Madhya Pradesh on 23 November, 2023

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

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IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                          BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 23rd OF NOVEMBER, 2023
                WRIT PETITION No. 9918 of 2019

BETWEEN:-

DEVENDRA     KUMAR   SHARMA   S/O  SHRI
RAMANUJ PRASAD SHARMA, AGED ABOUT 55
YEARS, OCCUPATION: PRATHMIK SHIKSHAK M.
S. BARHA CHACHI, VILLAGE POST CHACHAI
TAHSIL    -SEMARIYA    BLOCK   SIRMAUR,
DISTRICT REWA (MADHYA PRADESH)
                                                 .....PETITIONER
(BY SHRI K. K. PANDEY - ADVOCATE )

AND

1.    THE STATE OF MADHYA PRADESH THR.
      SECRETARY VALLLABH BHAWAN BHOPAL
      (MADHYA PRADESH)

2.    DISTRICT EDUCATION OFFICER, SCHOOL
      EDUCATION   DEPARTMENT,    DISTRICT
      REWA (MADHYA PRADESH)

3.    CHIEF  EXECUTIVE      OFFICER,  JILA
      PANCHAYAT, REWA,      DISTRICT REWA
      (MADHYA PRADESH)

4.    CHIEF EXECUTIVE OFFICER, JANPAD
      PANCHAYAT SIRMAUR, DISTRICT REWA
      (MADHYA PRADESH)

5.    SANKUL     PRACHARYA     HIGHER
      SECONDARY SCHOOL BARON, DISTRICT
      REWA (MADHYA PRADESH)
                                             .....RESPONDENTS
 (BY SHRI ANSHUL TIWARI - PANEL LAWYER )
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      This petition coming on for admission this day, the court passed
the following:
                                ORDER

1. This petition under Article 226 of the Constitution of India has been filed against the order dated 15.4.2019 passed by Chief Executive Officer, Jila Panchayat, Rewa in File No.Sr./St.- 3/Court/2019/18, by which the order of absorption dated 28-3- 2016 which was passed in compliance of the order dated 7-10- 2015 passed by this Court in W.P.No.16949/15 has been recalled and a direction has been issued for recovery of excess salary paid to the petitioner.

2. It is submitted by counsel for the petitioner that the petitioner was working on the post of School Teacher Grade-III on contract basis (earlier Guruji) as he was appointed as per the provisions of Madhya Pradesh Panchayat Samvida Shala Shikshak (Recruitment and Conditions of Services) Rule, 2005. Thereafter, the petitioner was absorbed in the cadre of Sahayak Adhayapak. The petitioner had already passed B.Ed. in the year 1995 i.e. at the time of his appointment on the post of Guruji. Similarly situated persons who were having B.Ed. degree and were absorbed in the cadre of Sahayak Adhyapak were reverted back on the ground that they had not passed B.T.C. examination as prescribed under the Madhya Pradesh Panchayat Adhyapak Samvarg (Employment And Conditions of Services) Rules, 2008 (hereinafter referred to as "the Rules, 2008"). Those persons filed writ petition which was registered as W.P.No.3521/2011 (Reeta Bhargava and another Vs.

State of M.P. and others). A Coordinate Bench of this Court by order dated 23.2.2012 allowed the said writ petition and held that since qualification of B.Ed. is better qualification in comparison to B.T.C./D.Ed./D.S.E., therefore, it cannot be said that the petitioners did not have the requisite qualification for their absorption in the cadre of Sahayak Adhyapak. Since it was also held that the petitioners therein also fulfill all other criteria of working experience of three years as contractual employee, therefore, the absorption of the petitioners therein were held to be proper and cancellation of absorption of the petitioners in the cadre of Sahayak Adhyapak was held to be contrary to law. Thereafter, petitioner also filed W.P. No.16949/2015 and by order dated 7.10.2015 passed by a Coordinate Bench of this Court it was directed that the case of the petitioner be also decided in the light of the law laid down by a Coordinate Bench of this Court in the case of Smt. Reeta Bhargava and another v. The State of M.P. and others passed in W.P.No.3521/2011. Accordingly, by order dated 28.3.2016 the petitioner was absorbed in the cadre of Sahayak Adhyapak w.e.f. 17.9.2011. Now, by the impugned order dated 15.4.2019 the absorption of the petitioner from 17.9.2011 has been recalled and it has been directed that the petitioner shall be treated as absorbed w.e.f. 29.9.2014.

3. It is submitted by counsel for the petitioner that it is clear from the impugned order that the petitioner was already having B.Ed. degree even at the time of his appointment on the post of Guruji. Thus, it is clear that the case of the petitioner is duly covered by order

passed by a Coordinate Bench of this Court in the case of Reeta Bhargava (supra).

4. Heard the learned counsel for the petitioner and State.

5. By the impugned order, the absorption of the petitioner w.e.f. 17.9.2011 has been cancelled only on the ground that as per the provisions of Right of Children to Free and Compulsory Education Act, 2009, minimum qualification for recruitment to the post of Sahayak Adhyapak is Higher Secondary and D.Ed./B.T.C./D.S.E. Training and since the petitioner was not having such minimum qualification, therefore, the absorption w.e.f. 17.9.2011 was not in accordance with law.

6. It is submitted that it has already been held by a Coordinate Bench of this Court in the case of Reeta Bhargava (supra) that the qualification of B.Ed. is better than the qualification of D.Ed./B.T.C./D.S.E. and therefore, the same analogy would apply and merely by referring to some other Acts, the respondents were wrong in setting aside the order of absorption.

7. Per contra, it is submitted by counsel for the respondents that as per the provisions of Schedule II of Rule 2(d) of the Rules, 2008 the minimum qualification for the post of Sahayak Adhyapak is Higher Secondary along with B.T.C. Although the petitioner was absorbed as Sahayak Adhyapak w.e.f.17.09.2011 but when it came to the knowledge of the authorities that necessary qualification for being appointed as Sahayak Adhyapak is Higher Secondary along with B.T.C./D.Ed./D.S.E. and the petitioner is not having the aforesaid qualification, therefore, the absorption order of the petitioner was rightly cancelled and he has been given absorption

w.e.f. 29.09.2014 and the earlier absorption granted w.e.f. 17.09.2011 was cancelled. It is further submitted that in the light of aforesaid direction, the Block Education Officer, Sirmaur, District Rewa was rightly directed to recover the excess amount paid to the petitioner.

8. Heard the learned counsel for the parties.

9. The undisputed facts are that the petitioner has passed B.Ed. examination and on the basis of the said qualification, the petitioner was appointed as Guruji. Thereafter, the services of petitioner were absorbed in the cadre of Sahayak Adhyapak. The minimum qualification for the post of Sahayak Adhyapak is Higher Secondary with B.T.C./D.Ed./D.S.E.; whereas the petitioner was having the degree of B.Ed.

10. A Coordinate Bench of this Court in the case of Smt.Reeta Bhargava (supra) had held that the qualification of B.Ed. is better then the qualification of B.T.C./D.Ed./D.S.E. Further, it is not a case of direct recruitment where the higher education can be considered as disqualification. The present is the case of absorption in the cadre of Sahayak Adhyapak. The petitioner was already working as Guruji and was holding the B.Ed. degree, i.e. a higher educational qualification.

11. Under these circumstances, this Court is of the considered opinion that the case in hand is squarely covered by law laid down by this Court in the case of Smt. Reeta Bhargava (supra). Furthermore, it is not the case of respondents that the judgment passed in the case of Smt.Reeta Bhargava (supra) was ever set aside.

12. Under these circumstances, this Court is of the considered opinion that the respondents committed a material illegality by cancelling the earlier order of absorption, by which the petitioner was absorbed in the cadre of Sahayak Adhyapak w.e.f.17.09.2011.

13. Accordingly, the order dated 15.04.2019 is hereby quashed. The order dated 28.03.2016, by which the services of petitioner were absorbed in the cadre of Sahayak Adhyapak w.e.f. 17.09.2011 is restored.

14. The petition succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE

JP/TG/-

TRUPTI GUNJAL 2023.11.24 17:09:21 +05'30'