Hon'ble Manish Mathur,J.
(Oral)
1. Suman Chandra Tripathi has preferred this Appeal challenging order dated 16.3.2010 rendered in writ petition No. 904 (S/S) of 2008 titled 'Suman Chandra Tripathi versus State of U.P. and others'.
Vide the impugned order, writ petition was dismissed while holding that the selection of the petitioner was illegal, and without authority of law. It has been held that the petitioner could not have been appointed as a male category candidate because the post belongs to female category candidate.
2. Learned counsel for the appellant/writ petitioner has not appeared to prosecute the case. Case relates to the year 2010. Nine years have gone by. We find no justifiable reason to adjourn the case to await appearance of the counsel.
In the circumstances with the assistance of learned counsel for respondents 3 and 4 Mr. Jyotinjay Verma, we have gone through the pleadings and contents of the impugned order.
3. Mr. Verma has pointed out that in deference to interim direction issued on 19.4.2010, the appellant/writ petitioner has been allowed to continue to serve,and is serving till date.
4. Learned counsel has taken a very fair stand that law laid down by a Division Bench of this Court in Kul Bhushan Mishra and another vs. State of U.P. and others, 2019(1) UPLBEC 418 can be invoked, in peculiar facts and circumstances of the case.
5. We having considered various facts and circumstances of the case are of the view that appointment/selection of Shiksha Mitras is for a particular academic session, in the case in hand for academic session 2007-08. After coming into force the Right of Children to Free and Compulsory Education Act 2009, Government Order dated 2.6.2010 was issued. Consequently, Shiksha Mitras are not being appointed after 2010, which is the accepted legal and factual position.
6. However, we have considered the issue in context of the contentions, and the law as laid down in judgment of Kul Bhushan Mishra's case (supra). Paras 6 and 22 from the judgment of Kul Bhushan Mishra's case (supra) read as under:-
"6. The Supreme Court thereafter proceeded to consider the fate of 1,78,000 Shiksha Mitras who were continued in service pursuant to the decision of the State Government. Dealing with this aspect it held thus:
"25. On the one hand, we have the claim of 1.78 Lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the Rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court.
"26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides."
22. The appointment of Shiksha Mitras as Assistant Teachers was unequivocally made subject to they having either acquired or now acquiring the requisite qualifications as prescribed under the 1981 Rules. Viewed in this light, it is manifest that Shiksha Mitras were not exempted from the rigours of possessing either the essential qualifications or otherwise meeting the requirements of the 1981 Rules and more particularly Rule 14 thereof. Rule 14(1)(a) in unambiguous terms confines the zone of eligibility to those who (a) possess the prescribed training qualification, (b) have passed the Teacher Eligibility Test and (c) the Assistant Teacher Recruitment Examination. The procedure for preparation of the merit list is then prescribed in sub-rule (2) which mandates the inclusion of only such persons, who possess the prescribed academic qualifications and have additionally passed the Assistant Teacher Recruitment Examination. Sub-rule (3) then proceeds to prescribe that the name of candidates shall be arranged in accordance with the quality points and weightage as specified in Appendix-I. Clause 5 of the Appendix-I provides for the manner in which quality point marks are to be computed with respect to marks obtained in the Assistant Teacher Recruitment Examination. There is thus an unambiguous command enshrined in sub rules (1) and (2) read with the Appendix-I of a candidate passing the Assistant Teacher Recruitment Examination. These provisions, significantly, do not prescribe or envisage the conferral of weightage to the marks obtained in the said examination."
7. The appeal is disposed of.
The appellant would be at liberty to avail benefits of judgment rendered in Kul Bhushan Mishra's case (supra) relevant portion of which has been been extracted above, subject to all just exceptions. It is made clear that in case the appellant satisfies the conditions laid in the above referred (extracted portion) of the judgment, he may claim the benefit.
Order Date :- 29.8.2019 prabhat