Hon'ble Mahendra Dayal,J.
The petitioner/appellant has filed the present Special Appeal against the Judgement and Order dated 2.2.2009 passed by the learned single Judge dismissing Civil Misc. Writ Petition No.2367 of 2009 filed by the petitioner/appellant (Smt. Indu Maurya).
It appears that an advertisement dated 26.10.2005 was published in the newspaper dated 27.10.2005 inviting applications for appointment of Shiksha Mitra in the District Ballia for the academic session 2005-06 in respect of various Primary Schools, including two posts of Shiksha Mitra at Primary School, Lavkara, District Ballia. Copy of the said Advertisement dated 27.10.2005 appears at page 76 of the Paper Book of the Special Appeal.
The Gram Shiksha Samiti, Gram Panchayat, Lavkara prepared a merit list including the names of only three applicants viz., Smt. Indu Maurya (petitioner/appellant herein), Smt. Suman Kushwaha and Shri Prem Chandra Arya, and sent the proposal for selection of Smt. Indu Maurya and Smt. Suman Kushwaha to the District Level Committee for approval. Copy of the proceedings of the meeting of the Gram Shiksha Samiti held on 31.12.2005 appears at page 79 of the Paper Book of the Special Appeal.
It appears that as various objections were received in respect of the selection of Shiksha Mitra in the District Ballia, the District Magistrate, Ballia by the Order dated 1.6.2007 constituted a sub-Committee. Copy of the said Order dated 1.6.2007 appears at page 82 of the Paper Book of the Special Appeal.
It further appears that one Smt. Sudha Tiwari submitted her Objections dated 13.6.2007 before the sub-Committee, inter-alia, stating that even though her application had already been submitted for appointment as Shiksha Mitra but the same was not sent by the Gram Shiksha Samiti to the District Level Committee. Copy of the said Objections dated 13.6.2007 submitted by Smt. Sudha Tiwari appears at page 84 of the Paper Book of the Special Appeal.
It appears that the sub-Committee concerned took note of the said Objections submitted by Smt. Sudha Tiwari and included the application of Smt. Sudha Tiwari while considering the proposal sent by the Gram Shiksha Samiti in respect of the three applications viz., Smt. Indu Maurya (petitioner/appellant herein), Smt. Suman Kushwaha and Shri Prem Chandra Arya, and thereafter, sent its recommendation to the District Level Committee recommending the names of Smt. Sudha Tiwari and Smt. Indu Maurya (petitioner/ appellant herein) for appointment on the aforesaid two posts of Shiksha Mitra. Copy of the recommendations dated 1.4.2008 appears at page 91 of the Paper Book of the Special Appeal.
It appears that the above recommendation made by the sub-Committee was approved by the District Level Committee, and accordingly, the Visheshagya Basic Shiksha Adhikari, Ballia issued appointment letter dated 25.8.2008 appointing Smt. Indu Maurya (petitioner/appellant herein) on the post of Shiksha Mitra. Copy of the appointment letter dated 25.8.2008 appears at page 97 of the Paper Book of the Special Appeal.
It further appears that in the meantime, the petitioner/ appellant filed a Writ Petition before this Court being Civil Misc. Writ Petition No.61255 of 2007 regarding no follow-up action being taken in respect of the appointment on the post of Shiksha Mitra. This Court by the order dated 13.12.2007 disposed of the said Writ Petition, giving liberty to the petitioner/appellant to make representation before the District Magistrate concerned, and the District Magistrate concerned was required to look into the grievance of the petitioner/ appellant and pass an order within the period, mentioned in the said order dated 13.12.2007. Copy of the Order dated 13.12.2007 appears at page 87 of the Paper Book of the Special Appeal.
Pursuant to the said order dated 13.12.2007 passed by this Court, the District Magistrate, Ballia considered the matter, relating to the aforesaid appointment on the post of Shiksha Mitra. After hearing the concerned parties, the District Magistrate, Ballia passed an order dated 10.12.2008, inter alia, holding that the selection process was vitiated, and as such, the aforesaid selection on the post of Shiksha Mitra was liable to be cancelled, and the representation submitted by the petitioner/ appellant was liable to be rejected. Accordingly, the District Magistrate, Ballia cancelled the aforesaid selection on the post of Shiksha Mitra and rejected the representation of the petitioner/ appellant. The District Magistrate, Ballia directed that fresh selection process would be initiated by the Visheshagya Basic Shiksha Adhikari, Ballia, after getting the advertisement published. Copy of Order dated 10.12.2008 appears at page 108 of the Paper Book of the Special Appeal.
The petitioner/appellant thereafter filed the aforesaid Civil Misc. Writ Petition No.2367 of 2009 before this Court.
By the Judgement and Order dated 2.2.2009, the learned Single Judge dismissed the said Writ Petition, filed by the petitioner/ appellant.
The petitioner/appellant has thereupon filed the present Appeal against the said Judgement and Order dated 2.2.2009 passed by the learned Single Judge.
We have heard Shri R.S. Kushwaha, learned counsel for the petitioner/appellant, the learned Standing Counsel appearing for the respondents no.1 and 2, and Shri K.S. Kushwaha, learned counsel appearing for the respondents no.3 and 5, and perused the record.
It is submitted by Shri R.S. Kushwaha, learned counsel for the petitioner/appellant that the District Magistrate, Ballia acted illegally in cancelling the selection on the post of Shiksha Mitra. It is submitted that the District Magistrate, Ballia was not correct in holding that the sub-Committee having found that the application of Smt. Sudha Tiwari had not been included, despite the same having been submitted by her, ought to have sent back the proposal to the Gram Shiksha Samiti, and after obtaining proposal from the Gram Shiksha Samiti in accordance with the Rules, selection process ought to have been done. It is submitted by Shri R.S.Kushwaha that the sub-Committee constituted to consider the objections in respect of the selection of Shiksha Mitra could itself consider the case of Smt. Sudha Tiwari and make recommendation in this regard.
Shri R.S.Kushwaha, learned counsel for the petitioner/appellant has referred in this regard to the Office Order dated 1.6.2007 whereby the sub-Committee headed by the Sub-Divisional Magistrate of the concerned Tehsil had been constituted.
Shri R.S. Kushwaha, learned counsel for the petitioner/appellant further submits that the view expressed by the learned Single Judge in the Judgment and Order dated 2.2.2009 that the Academic Session 2005-06 for which the aforesaid appointments were to be made having come to an end long back, no appointment could be made for the said Academic Session, was not correct, as once a person was appointed for one Academic Session, he could be given renewal on the said post for future Academic Sessions.
In reply, the learned Standing Counsel appearing for the respondents no.1 and 2 and Shri K.S. Kushwaha, learned counsel appearing for the respondents no.3 and 5 submit that the proposal for appointment as Shiksha Mitra must originate from the Gram Shiksha Samiti, in accordance with the prescribed procedure, as mentioned in the Advertisement dated 26.10.2005, appearing at page 76 of the Paper Book of the Special Appeal.
It is submitted that once sub-Committee found that the name of Smt. Sudha Tiwari ought to have been included in the proposal sent by the Gram Shiksha Samiti, it was incumbent on the part of the sub-Committee to have sent back the proposal to the Gram Shiksha Samiti for making fresh proposal, in accordance with the prescribed procedure. The sub-Committee was not right in itself including the application of Smt. Sudha Tiwari and making recommendation for selection of Smt. Sudha Tiwari and Smt.Indu Maurya (petitioner/ appellant herein).
It is further submitted that by the Government Order dated 2.6.2010, it has been decided that no fresh appointment of Shiksha Mitra would be made in view of the enforcement of the Right to Education Act, 2009.
In rejoinder, Shri R.S.Kushwala, learned counsel for the petitioner/appellant reiterates his submissions made earlier. He further submits that the Government Order dated 2.6.2010 would not be relevant in the present case as in view of the decision of this Court in Km. Sonika Verma vs. State of U.P. and Others, (2011) 1 UPLBEC 386 (DB), the Government Order dated 2.6.2010 would apply prospectively and would not be applicable to the selection process which had already started prior to the said Government Order dated 2.6.2010.
We have considered the submissions made by the learned counsel for the parties.
The District Magistrate, Ballia in the order dated 10.12.2008 has referred to various objections raised in respect of the selection made in regard to the aforesaid two posts of Shiksha Mitra at Primary School, Lavkara, District Ballia.
The District Magistrate, Ballia, has opined that in the proposal sent by the Gram Shiksha Samiti, the names of only three applicants viz., Smt. Indu Maurya (petitioner/appellant herein), Smt. Suman Kushwaha and Shri Prem Chandra Arya were included, and the name of Smt. Sudha Tiwari was not included in the proposal. In case the sub-Committee found that the proposal of the Gram Shiksha Samiti was erroneous as the name of Smt. Sudha Tiwari was not included in the said proposal, the sub-Committee ought to have returned the proposal to the Gram Shiksha Samiti, and after receiving fresh proposal from the Gram Shiksha Samiti, in accordance with the Rules, the process of selection should have been undertaken. The sub-Committee acted illegally in itself including the application of Smt. Sudha Tiwari, and making recommendation for selection without getting fresh proposal from the Gram Shiksha Samiti.
In our opinion, the view of the District Magistrate, Ballia was correct. According to the Scheme, as indicated in the Advertisement, the proposal was to originate from the Gram Shiksha Samiti, in accordance with the procedure indicated in the Advertisement.
The said proposal originating from the Gram Shiksha Samiti, was to be sent to the District Level Committee for approval. The sub-Committee, which was constituted by the Office Order dated 1.6.2007 (appearing at page 82 of the Paper Book of the Special Appeal), was entrusted with the function of examining the proposals, considering the objections/complaints in respect of such proposals, and disposing of such objections.
In this regard, we may refer to the relevant portion of the said Office Order dated 1.6.2007, relied upon by Shri R.S. Kushwaha, learned counsel for the petitioner/appellant in support of his submissions, which is as under :-
"mijksDr funsZ'kksa dk ikyu djrs gq, mDr lfefr fu/kZkfjr frfFk;ksa esa leLr izLrkoksa dk ijh{k.k dj iw.kZ ikjnf'kZrk ds lkFk f'kdk;rksa ,oa vkifRr;ksa dh lquokbZ dj fuLrkj.k djrs gq, fo|ky;okj 'kklukns'k esa mfYyf[kr izkfo/kkuksa ds vk/kkj ij Li"V laLrqfr lfgr i=koyh ftyk Lrjh; lfefr ds vuqeksnu gsrq izLrqr djsxhA"
It is, thus evident that the proposals which originate from the Gram Shiksha Samiti are to be examined by the sub-Committee (Up-Samiti), and the sub-Committee is required to hear the complaints and objections in respect of such proposals and dispose of such complaints and objections and then make its recommendation to the District Level Committee for approval. Thus the function of the sub-Committee is limited to consideration and disposal of the complaints and objections in respect of the proposals sent by the Gram Shiksha Samiti, and thereafter make recommendation to the District Level Committee. In case no proposal has originated from the Gram Shiksha Samiti, there would be no occasion for the sub-Committee (Up-Samiti) to exercise its power for considering the complaints and objections.
Similarly, in case the sub-Committee (Up-Samiti) finds that there is a deficiency in the proposal sent by the Gram Shiksha Samiti after considering the complaints/objections in respect of such proposal, then it will not be open to the sub-Committee (Up-Samiti) to make its own proposal to the District Level Committee. The proper course for the sub-Committee in such a case would be to send back such proposal to the Gram Shiksha Samiti for making fresh proposal.
In view of the above, it is evident that the District Magistrate, Ballia rightly held that once the sub-Committee found that the proposal sent by the Gram Shiksha Samiti was defective as the name of Smt. Sudha Tiwari had not been included in the proposal, it was not open to the sub-Committee to modify the proposal by including the name of the said Smt. Sudha Tiwari and make recommendation in respect of such modified proposal. The proper course for the sub-Committee, as held by the District Magistrate, Ballia, was to return the proposal to the Gram Shiksha Samiti requiring the Gram Shiksha Samiti to make a fresh proposal, in accordance with the Rules. The view of the District Magistrate, Ballia, in our opinion, is in accordance with the aforesaid Office Order dated 1.6.2007.
Coming now to the submission made by Shri R.S.Kushwaha, learned counsel for the petitioner/appellant that the view of the learned Single Judge that the Academic Session 2005-06 having come to an end long back, no appointment could be made for the said Academic Session, was not correct, we may refer to Clause -VII of the Advertisement dated 26.10.2005 (appearing at page 76 of the Paper Book of the Special Appeal), which is as under :-
"f'k{kk fe= dk dk;Zdky fdlh Hkh 'kSf{kd l= dh lekfIr vFkok 31 ebZ dks Lor% lekIr gks tk,xkA vkxkeh l= esa iqu% dk;ksZsftr fd, tkus ls iwoZ xzke f'k{kk lfefr iqupZ;[email protected] izkIr djuk vfuok;Z gksxkA ck/;rk ;g gksxh fd f'k{kk fe=ksa ds uohuhdj.k izfdz;k dh izR;sd n'kk esa 31 tqykbZ rd iw.kZ dj fy;k tk; vU;Fkk xzke f'k{kk lfefr uohuhdj.k ds lEcU/k esa 31 tqykbZ rd fu.kZ; ugha ysrh gS rks bls drZO; dh mis{kk (MsjhysD'ku vkQ M~;wVh) ekudj xzke iz/kku ds fo:) fu;ekuqlkj dk;Zokgh dh tk,xh A ldk;Z o vkpj.k larks"ktud u ik;s tkus dh n'kk esa xzke f'k{kk lfefr }kjk nks frgkbZ cgqer ls fyf[kr izLrko djds f'k{kk fe= dks e/; l= esa Hkh gVk;k tk ldrk gSA "
From a perusal of the above clause, it is evident that the appointment of Shiksha Mitra was to be made for particular Academic Session, and the tenure of such Shiksha Mitra was to come to an end on the expiry of the period, mentioned in the above clause. Even the exercise for renewal was required to be done, in any case, by 31st July.
In view of the above, it is evident that the learned Single Judge was right in observing that "therefore, even if the petitioner establishes a case, which otherwise he has not, no appointment can be made for the session 2005-06 which has long expired now in the session 2008-09."
Again, as no appointment could be given to the petitioner/ appellant on the post of Shiksha Mitra for the Academic Session 2005-06, which had expired long back, there would be no occasion to consider the petitioner/appellant for giving renewal to the petitioner/ appellant on the said post for future Academic Sessions. The submission made in this regard by Shri R.S. Kushwaha, learned counsel for the petitioner/appellant, cannot, in our view, be accepted.
We may add that we are not considering the submission made by the learned Standing Counsel appearing for the respondents no.1 and 2 and Shri K.S. Kushwaha, learned counsel appearing for the respondents no.3 and 5 on the basis of the Government Order dated 2.6.2010 as the said Government Order was not in existence, when the Writ Petition was considered by the learned Single Judge on 2.2.2009.
In view of the above discussion, we are of the opinion that the Special Appeal filed by the Appellant lacks merit, and the same is liable to be dismissed.
The Special Appeal is accordingly dismissed. However, on the facts and in the circumstances of the case, there will be no order as to costs.
Order Date :- 02.05.2012 vs