Hon'ble R.R. Awasthi, J.
This special appeal has been filed by Subhash Chandra challenging the judgement and order dated 30.11.09 passed by the learned Single Judge, by means of which the writ petition preferred by the respondent Smt. Chandra Prabha has been allowed and the appointment of the present appellant Subhash Chandra on the post of Shiksha Mitra, has been quashed. A further direction has been issued to the respondents to consider the case of the petitioner Chandra Prabha (respondent in the present appeal) in accordance with the observations made in the judgement by giving prospective application of the Government Order dated 24.4.06.
Arguments have been advanced at length by the counsel for the parties.
Sri Ramesh Kumar Srivastava, appearing for the appellant has submitted that the learned Single Judge failed to appreciate that the respondent no.2 Smt. Chandra Prabha could not have been considered at all for appointment on the post of Shiksha Mitra for Gram Sabha Chandapur, as admittedly she did not furnish the domicile certificate before the last date of submission of the application form, and therefore, her form was liable to be rejected on this ground alone.
Further argument is that, the view taken by the learned Single Judge that in view of the Division Bench judgement in the case of Km. Rita Yadav vs. State of U.P. and others, 2007 (25) LCD 626, retrospective effect cannot be given to the Government Order dated 12.11.06, escapes the two Government Orders, namely, Government Order dated 10.10.05 and 21.11.05.
The Government Order dated 10.10.05 provided that the Instructor would be given first priority in the matter of appointment of Shiksha Mitra and the Government Order dated 21.11.05 provided that the Instructor would be given appointment, even if he/she has secured less percentage of marks. The Government Order dated 24.4.06 only provided that in the presence of more than one Instructor, the Instructor having longer 2 experience will be given appointment.
It is also the case of the appellant that the respondent Chandra Prabha was never empanelled for being appointed as Shiksha Mitra in Gram Sabha Chandapur, though she was initially selected for Gram Sabha Govindapur.
The appellant was having experience of Instructor of a much longer period, namely, about twelve years as against the five years experience of the respondent on the post of Instructor.
Sri Ramesh Pandey, appearing for the private respondent, in response, vehemently urged that the plea that respondent had not furnished the domicile certificate within time is not open to the appellant in special appeal, as that is not the basis of the order passed by the learned Single Judge and that whatever pleas were raised by the appellant challenging the order passed by the Zila Basic Shiksha Adhikari and the appointment of the present appellant in the writ petition were only to be considered even if some new pleas were raised in the counter affidavit defending the order under challenge in the writ petition.
Issues which require adjudication, in a writ petition, arise out of the pleadings, viz. the pleas taken in the writ petition, in the counter affidavit and in the rejoinder affidavit. If an order is challenged in the writ petition, on any ground, it is always the right of the respondent to defend the order by taking all such pleas, which may be relevant for the purpose. Thus, to contend that the pleas raised in the counter affidavit, which in the instant case goes to the very root of the matter, could not have been seen or adjudicated upon, do not deserve any merit.
Learned counsel for the respondent, however, could not dispute that the last date of submission of the application form, after extension was 1.12.05 and the domicile certificate was issued on 19.12.05. This proves beyond doubt that the domicile certificate could not have been filed on or before 1.12.05, which was the last date of submission of the application form.
The argument of the respondent is that since the Pradhan of the Gram Sabha actually knew about the residence of the respondent, therefore, he had ascertained and verified her residence, and as such the filing of the domicile certificate, may be after the last date of submission of the application form, would not make the respondent ineligible for being 3 considered for appointment on the post of Shiksha Mitra.
The genuineness of the experience certificate furnished by the respondent has also been challenged, but we do not find it necessary to delve on the said issue in view of the fact that the respondent could not have been considered for selection/appointment, she having not filed the application form in accordance with the terms of the advertisement, as she did not furnish the domicile certificate before the last date of submission of the application form, therefore, her form was liable to be rejected.
In regard to the plea of the respondent that the Government Order dated 24.4.06 could not have been made operative retrospectively and that the said matter was covered by the Division Bench judgement in the case of Km. Rita Yadav (supra), learned counsel for the appellant has submitted that prior to issuance of the Government Order dated 24.4.06, there were two Government Orders already issued, namely, Government Orders dated 10.10.05 and 21.11.05.
The Government Order dated 10.10.05 provided that the Anudeshak (Instructor) would be given first priority in the matter of appointment of Shiksha Mitra and the Government Order dated 21.11.05 provided that the Instructor would be given appointment, even if he/she has secured less percentage of marks.
We do not find it necessary to address ourselves upon the effect of the Government Order dated 24.4.06, namely, whether it can be made applicable in the case or not and whether it can be treated retrospective, it being a clarificatory order only, which clarifies only the Government Order dated 12.11.05, in view of the Division Bench judgement in the case of Km. Rita Yadav (supra), as we find that in view of the admitted fact that the respondent did not furnish the domicile certificate within the time prescribed, i.e. alongwith the application form, her application ought to have been rejected and she could not have been considered for appointment. Since the said plea has not been considered by the learned Single Judge, though it was specifically raised as submitted by the learned counsel for the appellant and which specifically finds mention in the counter affidavit filed in the writ petition and has been seriously urged before this Court, normally the matter ought to have been remanded before the learned Single Judge, but in view of the established and admitted position, that the last date for submission of the application form was 3.12.05 and the said certificate was 4 issued on 19.12.05, the application was to be rejected for want of domicile certificate, in terms of the conditions laid down in the advertisement, we, set aside the order dated 30.11.09 passed by the learned Single Judge and dismiss the writ petition preferred by the respondent.
The special appeal is allowed. No order as to costs.
Dated: 25.1.2010 Sachin