Allowed

Sarita Devi v. State of U.P. Thru Secy. Primary Education and Others

Allahabad HC24 May 2018WRIA/33844/2008

Case brief

AI extract

What is this about?

A Single Judge allowed a writ petition challenging the cancellation of a Shiksha Mitra appointment. The court set aside orders that annulled the petitioner's appointment based on a retrospective recalculation of marks and held that an officer viae whom an order was passed could not exercise powers delegated to the District Magistrate.

What did the court decide?

Quashed the orders dated 18.01.2007 and 05.04.2008; restored petitioner's appointment and directed the authority to take necessary action within six weeks.

Sarita Devi Vs State of U.P. Thru Secy… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 13

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Case :- WRIT - A No. - 33844 of 2008

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Petitioner :- Sarita Devi

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Respondent :- State Of U.P. Thru' Secy. Primary Education & Others Counsel for Petitioner :- M.R. Gupta,Ganesh Shanker Srivastava,Indra Raj Singh,R.D. Kishor

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Counsel for Respondent :- C.S.C.,I.R. Singh,Mrigraj Singh,P.K. Bhardwaj,R.M.Vishwakarma

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Hon'ble Ajit Kumar,J.

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1 . Heard Sri Ganesh Shanker Srivastava, learned counsel for the petitioner and Sri Adarsh Singh, Advocate holding brief of Sri I.R. Singh, learned counsel for the respondent.

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2 . The petitioner before this Court is challenging the order dated 5^th April, 2008 whereby the Special District Basic Education Officer, Jaunpur has rejected his representation against the order dated 18^th January, 2007 terminating his engagement as Shiksha Mitra on the ground that the marks scored by the 5^th respondent were more than that of the petitioner and, therefore, the selection of the 5^th respondent by cancelling the appointment of the petitioner was fully justified.

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3 . The factual background of the case is that the petitioner as well as the 5^th respondent had applied for being considered for appointment as Shiksha Mitra under the scheme floated by the State Government for such appointments in Senior Basic Schools run by Basic Shiksha Parishad. The selection was held as per the Government order dated 10^th October, 2005 and the petitioner having been placed on the top of the list on the basis of average marks secured applying the calculations prescribed in the Government order (supra). Accordingly, the petitioner was offered appointment vide appointment letter dated 3^rd April, 2006 passed by the District Co-ordinator (Vocational Education Jaunpur) pursuant to which the petitioner was sent for training which was

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concluded on 3^rd April, 2006. The petitioner has brought on record the list of Shiksha Mitra dated 10^th April, 2006 in which the name of the petitioner figures at item No.7. Thus, having successfully completed the training, the petitioner started discharging the duties. In the meanwhile, the State Government issued another Government order on 24^th April, 2006 as a clarificatory one to the earlier Government order, particularly explaining away the method of calculation of marks to be applied for the purposes of awarding additional marks to the candidates in the category of disabled persons, divorcee women and widow. This clarification is in respect of paragraph 9 of the Government order which earlier provided for 10% of the additional marks on the basis of the average calculation to be done under the State Government order.

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4 . In view of the subsequent Government order dated 24^th April, 2006 as the State Government clarified the application of calculation rules vide paragraph 2 of the Government order, it came out for the first time that an additional 10 marks had to be added after adding the high school and intermediate marks divided by two.

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5 . In view of this new calculation, it appears that the 5^th respondent got his marks recalculated and on that basis, another order was passed on 18^th January, 2007 whereby the appointment of the petitioner as Shiksha Mitra came to be annulled and in her place the 5^th respondent was directed to be appointed by the Special District Basic Education Officer, Jaunpur, although the order dated 18^th January, 2007 was passed but it appears that it was not given effect to and this is the reason why an application was moved on 11^th December, 2007 by the 5^th respondent to the Special District Basic Education Officer, Jaunpur for expressing his anguish that unless and until the appointment of Sarita Devi was cancelled, he would not be given joining.

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6 . It appears that thereafter though the petitioner was continued till

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December, 2007 but since January, 2008 he was not permitted to work and it is under these circumstances, the petitioner came to know about the order dated 18^th January, 2007. Having come to know the order dated 18^th January, 2007, the petitioner filed a writ petition before this Court bearing Writ Petition No. 2870 of 2008 which was dismissed on the ground of alternative remedy as District Magistrate has been empowered to look into the grievance of Shiksha Mitras at the first instance. Under the circumstances, the petitioner moved a representation narrating the entire story about his continuance as Shiksha Mitra and also that the marks have been wrongly calculated in terms of the subsequent Government order whereas on the date of his selection of the appointment, the earlier Government order was enforced. It is on this representation moved to the District Magistrate on which the order impugned dated 5^th April, 2008 has been passed by the Special Basic Education Officer, Jaunpur.

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7 . The argument advanced by learned counsel for the petitioner is that the Government order dated 24^th April, 2006 was subsequent Government order and may be it was a clarificatory one in respect of the earlier Government order but it could not have been with retrospective effect. The selections and appointments that had already been taken place in terms of the Government order dated 10^th April, 2005 could not have been questioned any more by the authority concerned. For this purpose, he has relied upon of a Division Bench judgment of this Court in the case of Km Rita Yadav vs. Arjun Singh Yadav reported in 2007 (6) AWC 6332 . The Division Bench has held that the calculation of the marks that have been prescribed for under the subsequent Government order, cannot be reckoned with retrospectively unless and until the Government order make such clarificatory amendment effective retrospectively. Vide para 10 of the judgment ( supra ), the Court held thus:-

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“10. In this connection, we must note that there is a recent judgment of the Apex Court in the case of Secretary, A.P. Public Service Commission vs. B. Swapna and others reported in 2005(2) E.S.C. (SC) 247 wherein the Apex Court has laid down that statutory rule is normally prospective unless it is expressly, or by necessary implication, made to have retrospective effect. There must be words in the Statute showing intention to affect existing right. If the rule is clear in its language then there is no difficulty. But if it is capable of two interpretations, it ought to be considered as prospective. In the present case, we have gone through this circular issued on 24th April, 2006. It undoubtedly states to begin with that the Government order dated 10th October, 2005 has led to some confusion with respect to the addition of the weightage that was provided thereunder. However, the Government clarificatory order does not say anything to provide that it will govern the selection made earlier or made from any particular date in the past. There is no indication in this subsequent circular that it is to act retrospectively. Inasmuch as there is no specific indication therein, as stated by the Apex Court, assuming that two interpretations are possible, the circular will have to be operated as prospectively.”

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8 . Learned counsel for the petitioner has contended that this judgment still holds the field and has not been appealed against or set aside by the Apex Court. He has further relied upon another judgment of learned Single Judge passed in Writ Petition No. 26995 of 2007 Sri Narain Shukla vs. State of U.P. and others, wherein the Court had followed the judgment of Km Rita Yadav ( supra ) and set aside the order impugned in identical circumstances.

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9 . Another argument advanced by learned counsel for the petitioner is that the representation against the order lies before the District Magistrate and once the order was passed by the Special District Basic Education Officer, Jaunpur himself on 18^th January, 2007, he could not have to sit in appeal over and above his own order. He has drawn the attention of the Court to the recitals made in the impugned order in which the Special District Basic Education Officer, Jaunpur seems to have passed an order on behalf of the District Magistrate and in which

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he refers that the District Magistrate has decided to do so. He says that this is a case where an officer against whom the representation was made himself sat in appeal over his own order and, therefore, in such circumstances, the principle is attracted that nobody can judge in his own case. Once the Special District Basic Education Officer had applied the same principle by calculation of marks in the earlier order dated 18^th January, 2007, the argument is that it was only open for the District Magistrate to have considered the same and pass the order and, therefore, he urges that the impugned order cannot be sustained. It is also argued that in the representation specific plea was taken that the Government order did not have retrospective effect, once the selection and appointment has already been made in terms of earlier Government order but there is no addressed to the said issue under the impugned order.

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10 . Per contra , the arguments advanced by learned counsel for the respondent is that there is no fault in calculation of marks at the end of the authorities concerned. Further he says that he has continued from January, 2008 till date and since the scheme of Shiksha Mitra has already been brought to an end, no further relief can be granted to the petitioner. He has also argued that original order passed by Special Basic Education Officer, Jaunpur dated 18^th January, 2007 was never challenged. He says that even in this writ petition, this order has been questioned by means of an amendment application quite belatedly. He has further argued that writ petition in matters of Shiksha Mitra is not maintainable as it is a question of contract of engagement without any prescribed pay-scale. For this purpose, he has referred to the judgment of a Division Bench of this Court in the case of Umesh Kumar Singh vs. State of U.P. and others reported in 2018 (5) ADJ 587 . He has also placed reliance upon the judgment of learned Single Judge of this Court in the case of Smt. Asha Rani vs. State of U.P. and others in which he relies on the last paragraph of the judgment, wherein it has been held

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that the appointment of the petitioner was not back door entry. Further, the Court observed that the petitioner having become overaged, would not even be eligible to apply in the absence of TET qualification. It was, accordingly, ordered that in case post teachers available in the institution in question, the name of the petitioner for adjustment would be considered by the District Education Officer, Meerut. He has also relied upon the judgment in the case of Bharat Amratlal Kothari vs. Dosukhan Samadkhan Sindhi reported in 2010 (1) SCC 234 on the ground that the granting relief not prayed for was not approved by the Court. He has questioned the principle of amendment at such belated stage on the principle of Order 6 Rule 17 of the Code of Civil Procedure, 1908.

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11 . Having heard learned counsel for the parties and having perused the record, I find that the selection and appointment of the petitioner was done after following due procedure prescribed under the Government order dated 10^th October, 2005 and the petitioner was accordingly, sent for training and completed his training and it is thereafter he started working as Shiksha Mitra in Junior Basic School, Chaturbhujpur, Block- Barshethi, District- Jaunpur. To this extent, there is no dispute between the parties. Learned counsel for the respondent could not dispute about the existence of the Government order dated 10^th October, 2005 and its application on the date of selection and appointment. The entire scenario changes only with the issuance of another Government order dated 24^th April, 2006, whereby clarification has been made as to how the additional 10 marks have to be added in respect of the disabled persons and other categories of person referred to in paragraph 2 of the Government order. So, the bone of contention has become 'clarificatory note' given in the earlier paragraph 9 of the Government order dated 10^th October, 2005 and it is on the basis of this clarificatory note issued subsequently by the State Government in its

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order dated 24^th April, 2006 that re-calculation of mark was got done by the authorities concerned in respect of the 5^th respondent and consequently the order dated 18^th January, 2007 came to be passed. The claim of the 5^th respondent is that he being disabled person the calculation of marks got rightly done on the basis of subsequent Government order.

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12 . In the opinion of the Court the controversy has come to be resolved in view of Division Bench judgment of this Court ( supra ) the argument that clarificatory rule can be applied retrospectively, is no more open to the 5^th respondent and on this count alone the order passed by the Special District Education Officer, Jaunpur, dated 18^th January, 2007 was clearly not sustainable. However, it appears that since said order was not given effect to, it continued to operate till December, 2007 as it is also very much clear from Annexure-8 to the writ petition where Head Master has given a certificate of working to the petitioner on 15^th October, 2007 that the petitioner was working. This is also further corroborated from Annexure-9 to the writ petition which is the letter of the 5^th respondent written by himself on 11^th December, 2007 the Special Basic Education Officer that unless and until the appointment of the petitioner was not annulled, he would not be given joining. Thus, it is proved on record that the petitioner continued to discharge duties till December, 2007 as Shiksha Mitra. It appears that thereafter the petitioner was not permitted to work and hence he filed writ petition. In the writ petition, he had questioned the very order by which he was removed from the post of Shiksha Mitra and had questioned the application of the amended rules with retrospective effect which has benefited the 5th respondent.

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13 . I find from the order dated 5th April, 2008 which has been impugned in the writ petition that the Special District Basic Education

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Officer has taken the same stand that he had taken in the order dated 18th January, 2007. So, it is virtually the same order which had earlier been passed and which had been questioned in the Writ Petition No. 2870 of 2008 (Annexure-10 to the writ petition) which was dismissed only on the ground of alternative remedy.

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14 . In the opinion of the Court, the District Magistrate has been authorised under the entire scheme of Shiksha Mitra under the relevant Government order to look into the grievances if raised by such persons against the orders and directions issued by the District Basic Education Officer and, therefore, the petitioner rightly made a representation befor the District Magistrate but I find from the impugned order that the order has been passed by the Special District Basic Education Officer on 5th April, 2008 and not by the District Magistrate, though the representation was addressed to the District Magistrate. The recitals have come in the order impugned that the representation was considered by the District Magistrate and thereafter the District Magistrate had taken decision to benefit the 5th respondent in terms of calculation of marks. So, ultimately it is the Special District Basic Education Officer, who has become authorized officer for the District Magistrate to pass an order on his behalf. The law is well settled that no sub delegation is permissible in law. The State Government had already delegated its power to the District Magistrate under the relevant Government order and, therefore, no further delegation of power could have been made by the District Magistrate and, therefore, I am of the opinion that the order passed by the Special District Basic Education Officer, Jaunpur on behalf of the District Magistrate was clearly bad in law for want of lawful authority and the order, therefore, on this count also cannot be sustained. However, the argument advanced on behalf of the respondent is that this order will not amount to dilute the order earlier passed by the same officer on 18th January, 2007. The argument is misplaced . In the event

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the order earlier passed by the same officer was put to challenge before this Court by means of the writ petition which was dismissed on the ground of alternative remedy, the same order was also under challenge before the District Magistrate but the District Magistrate did not pass any order. The second order was passed by the Special District Basic Education Officer rejecting the representation against his order and so the second order confirms the earlier one and, thus, challenge to the subsequent order alone would not make the petition defective.

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15 . Now, it has already come to be established that the re-calculation of marks in respect of the 5th respondent under the subsequent Government order dated 24th April, 2006 was clearly erroneous in view of the Division Bench of this Court, the order dated 5th April, 2008 cannot be sustained in law. It is settled law that if setting aside of one illegal order revives another illegal order, the said order needs also to be set aside and, therefore, I am of the opinion that the order dated 5th April, 2008 passed by the Special District Basic Education Officer, Jaunpur cannot be sustained in law and so also the order earlier passed on 18th January, 2008 cannot be equally sustained in law and both the orders deserve to be set aside.

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16 . The next argument of the learned counsel for the respondent is to the effect that the amendment applicant could not have been considered as it has been quite belatedly filed. In view of what I have already held hereinabove, I am of this opinion that subsequent amendment application is only a clarificatory application in nature and is only to the extent of extending the relief as against the earlier are of Special District Basic Education Officer.

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17 . The law is well settled that in matters of relief the entire pleadings have to be taken into account. The Court will not go by the technicality of relief made in the prayer clause of the writ petition. If the

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grievance has been raised and they are to be adjudged in its entirety then the substantial relief is to be granted by the Court. The substantial justice needed to be done in the judicial exercise of power by this Court while considering the matter under Article 226 of the Constitution of India. Even otherwise, the prayer clause which is final relief clause there is always residuary relief clause. The judgment which has been relied upon by the learned counsel for the respondent in the case of Bharat Amratlal Kothari (supra), in my opinion is quite distinguishable on facts. That was a case where the relief was not at all prayed for in the writ petition but this is not the case here and, therefore, judgment is distinguishable on facts. Another judgment relied by the learned counsel for the respondent of the learned Single Judge is relating to the circumstances where the petitioner was not given back door entry and had gone overaged but then it was not done by terminating services of a sitting incumbent. If the principle applied by the Court in the Writ Petition No. 18405 of 2016 is applied here then it is all the more difficult for the 5th respondent to defend the order impugned for want of bonafides on the part of authorities and the respondent no.5. It is a case where the appointment has been given wholly illegally by applying the principle of calculation of marks which was clearly not permissible in the present case. It is settled law that once the appointment has been made and the appointee has been given training, the selection is over. That selection cannot be reopened under any circumstances unless the law so permits. Learned counsel for the respondent has not been able to place any such rule or regulation whereby the selection could have been reopened only on account of subsequent amendment being made in the relevant rules prescribing mode of selection and calculation of marks for the assessment of merits.

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18 . The last leg of argument of learned counsel for the respondent is to the effect that in the matters of contractual appointment, this writ

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petition is not maintainable under Article 226 of the Constitution. He has placed reliance upon the judgment in the case of M/s ECI-SPICSMO-MCML vs. Central Organization for Railway Electrification, Allahabad; 2018 (5) ADJ 591 (DB) . The judgment has been cited with a plea that the only remedy available for the petitioner was the common law. There is no quarrel about the principle laid down by the Division Bench of this Court. The contractual appointment are not enforceable nor, here is a case where this Court is going to enforce any contractual appointment. The question for consideration is whether the administrative decision making at the end of the authorities in the present case is justified or not.

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19 . It is settled principle that in administrative decision making not only the procedural part has to be sound but the decision has also to be rational one. However, in the present case, I find that not only the procedural part is quite unsound in the administrative decision making in the present case as the power which was required to be exercised by the District Magistrate has been exercised by the Special District Basic Education Officer, Jaunpur which is clearly impermissible.

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20 . Learned counsel for the respondent could not place any such rule or law whereby it can be said that the Special District Basic Education Officer could have exercised the power on behalf of the District Magistrate.

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21 . In view of this, I am of the considered opinion that the procedure followed in the administrative decision making in the present case suffered from inherent lack of authority. Secondly, it is also to be seen as to whether the administrative order that has been passed in the present case is justified legally or not. Even if, it is said that the Special District Basic Education Officer in the capacity of an appointing authority could have reconsidered the order but the question the law that

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he has applied has already stood annulled, in a sense not applicable in view of the judgment of the Division Bench of this Court as far as its retrospective operation is concerned. So, on this principle the impugned order is clearly unsustainable. The orders impugned dated 18.01.2007 (Annexure-6) passed by 2^nd respondent and 05.04.2008 (Annexure-12) passed by 2^nd respondent/ 4^th respondent are accordingly quashed.

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22 . In the last, learned counsel for the respondent has submitted that he has already worked since 2008 and still working and has got honorarium also his interested should be protected. I find that in the matter Anand Kumar Yadav, which has travelled upto the Supreme Court and the Court has observed in the said case that although the scheme of Shiksha Mitra has come to an end but such people have to be given two chances to possess the requisite qualification and it would be open for the State Government to continue them for that purpose. Since I have set aside the impugned order and I find that a gross illegality has been committed for which the petitioner has already suffered a lot, setting aside of the impugned order shall result in consequential benefits to the petitioner and necessary order shall be passed by the authority concerned within a period of six weeks from the date of production of certified copy of this order.

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23 . However, at the same time in special facts and circumstances of the case, I am of the view that the interest of the 5^th respondent insofar as he has discharged his duties as Shiksha Mitra shall be protected. The honorarium that he has already drawn shall not be recovered as a consequence to the setting aside of the impugned order and the period for which he has already worked shall be reckoned with for the purposes of experience on account of de facto working in the institution for the purposes of future appointment in case he applies for the same.

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24 . He shall also be given due consideration like other Shiksha Mitra

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under the order of the Supreme Court passed in the case of State of U.P. vs. Anand Kumar Yadav 2017 SCC, On-line (SC) 792 for the purposes of selection and appointment against regular vacancies if he applies and otherwise possesses essential qualifications.

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25 . With the aforesaid directions and observation, the writ petition is allowed.

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Order Date :- 24.5.2018 Atmesh

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Court No. - 13

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Case :- WRIT - A No. - 33844 of 2008

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Petitioner :- Sarita Devi

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Respondent :- State Of U.P. Thru' Secy. Primary Education & Others Counsel for Petitioner :- M.R. Gupta,Ganesh Shanker Srivastava,Indra Raj Singh,R.D. Kishor Counsel for Respondent :- C.S.C.,I.R. Singh,Mrigraj Singh,P.K. Bhardwaj,R.M.Vishwakarma

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Hon'ble Ajit Kumar,J.

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Ref:- Civil Misc. Amendment Application

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Heard learned counsel for the parties.

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The amendment application is allowed.

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Let the necessary correction be carried out during the course of the day.

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Order Date :- 24.5.2018 Atmesh

Sarita Devi v. State of U.P. Thru Secy. Primary Education and Others

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Sarita Devi v. State of U.P. Thru Secy. Primary Education and Others

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