DHIRENDRA KUMAR TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) Petitioners, in both the writ petitions, claim that they have functioned as Instructor in non-formal education scheme, and as such their rights have been infringed on account of issuance of Government Order dated 06. 05. 2008 issued by the State Government as instead of giving enbloc preference, providing marks in lieu of service rendered has been provided for. Brief background of the case, as disclosed in the writ petition, is that the Government of India introduced a scheme for imparting non-formal education to the children in the age group of 9-11 years, who are either school dropouts or did not go to school. Said scheme provided for opening of non-formal education centres by the State Government with the help of the Central Government's grant. In the State of U. P. also, non-formal education centres were opened, wherein petitioners claim to have functioned as Instructor. Said scheme was to come to an end on 01. 07. 1999, and new scheme in the name of 'sarva Shiksha Abhiyan' was to be launched and in the new scheme Shikshamitras were to be appointed on the identified posts. Before this Court Civil Misc. Writ Petition No. 5392 of 1994 had been filed, claiming therein that the incumbents who were appointed in the non-formal education scheme on fixed salary, they were entitled to be given regular pay scale as was being paid to regular employees and further benefit of regularisation was also liable to be extended to such incumbents. This Court on 17. 08. 1999 passed an order issuing necessary directions to Local Bodies, who were to implement the scheme of Shikshamitra and therein the incumbents working in non-formal education were to be considered for appointment, and thereafter other candidates be considered for appointment under the new scheme. Thereafter, the State Government framed scheme dated 01. 07. 2000, wherein it was mentioned that the object was to seek participation of young educated persons with a view to get primary education in village and it was made clear that the scheme was not basically to generate employment, rather its object was to encourage young persons and involve them in the spread of village education. Said Government Order was amended on 10. 10. 2005 with clarificatory letter dated 21. 11. 2005, wherein it was mentioned that in case of instructor/supervisor, who earlier participated in non-formal education, fulfilling other conditions of eligibility and falling in that case will be appointed even if their merit was less. Again subsequent Circular was issued on 24. 04. 2006, mentioning therein that in case in one village there are more than one instructor/supervisor than the required number, in that event, priority will be given to the incumbent who has served for longer period as instructor. Full Bench of this Court in the case of Daya Ram Singh vs. State of U. P. and others , 2007 (3) ESC 1760 considered the aforementioned Government Order as also the meaning of the word "variyata", and it was held therein that in the context of Rules, purpose of the scheme and the Government Circulars, it is clear that instructors/supervisors are to be preferred enbloc. Thereafter, Division Bench in the case of Parvati vs. State of U. P. and others, 2007 (6) ADJ 384, considered the earlier Circulars and clearly noted that education of children is the subject which the State Authorities cannot afford to ignore and further mentioned that as the validity of the Government Order was not at all challenged, as such concerned Court was not in a position to examine as to whether the Government Order providing precedence in favour of candidates having worked as instructor/supervisor in non-formal education meet the requirement of Articles 14 and 16 of the Constitution of India, and in this background, State Government was asked to consider the issue and pass appropriate orders, keeping in mind the importance of basic education and protecting the interest of children, as the basic purpose of issuance of Government Order seem to impart basic quality education to the children of the State and not to give employment to lessor meritorious candidates as same would not serve the cause of the State, as they cannot be friends of education rather would be enemies of education. Thereafter, State Government in its wisdom has proceeded to consider the matter and mentioned that the instructors/supervisor on the basis of service which they have rendered bonus marks would be awarded, which would balance the merit vis-a-vis experience, and in this background, Government Order has been issued. This Government Order is subject matter of challenge in present writ petitions. Sri R. P. Mishra and Sri Rajiv Dwivedi, learned counsels appearing in support of the writ petitions, contended with vehemence that once judgment has been delivered by this court on 17. 08. 1999 providing for consideration of instructors of non-formal education scheme to be considered first for appointments, and the said judgment still holds field, then in this background, the Government could not have changed the procedure, as such Government Order dated 06. 05. 2008 is arbitrary and unreasonable and same is liable to be quashed. Countering the said submissions, Sri K. K. Chand, learned Standing Counsel, contended that framing of educational qualification and laying down policy is within the domain of the State Government and once conscious decision has been taken to maintain balance in between merit and experience, then the same requires no interference, as such writ petitions are liable to be dismissed. After respective arguments have been advanced, factual position which emerges, and on which there is no dispute, is that the incumbents, who had functioned as instructors/supervisors in non-formal education scheme, had approached this Court by preferring writ petition No. 5392 of 1994 and this Court on 17. 08. 1999 passed orders directing the State Government to issue necessary directions to local bodies, who were to implement the new scheme of Shikshamitra and Acaharya, that the incumbents working under the scheme be considered first for appointment, and thereafter other candidates may be considered for appointment. When scheme in question was sought to be implemented, Civil Misc. Writ petition No. 2078 (MS) of 2001 had been filed before Lucknow Bench of this Court, and the Lucknow Bench passed order that the judgment of this Court be complied with. Division Bench in Special Appeal No. 317 of 2001 modified the aforesaid interim order by contending that selection and appointment on the post of Shikshamitra under the new scheme be made in the light of the judgment of this Court dated 17. 08. 1999 passed in writ petition No. 5392 of 1994. Against the said order Special Leave Petition No. 8 of 2002 had been filed, wherein, as far as interim order is concerned, qua same no interference was made. However, it was made clear that before passing final order, relevant judgments, including the judgment of Apex Court in the case of State of West Bengal and others Vs. Monirujjaman Mullick and others (1996) 10 SCC 56, wherein the Apex Court has taken the view that non-formal education centres cannot be equated with the primary schools, which are regularly run by the Education Department of the State Government. Apart from the basic qualitative differences between the two institutions even the nature of work of the non-formal instructors and the primary school teachers is not identical. The method of appointment, the source of recruitment, method of teaching, hours of teaching and the mode of payment are entirely different. In this background, the order which was passed providing for 'equal pay for equal work' was not approved. Under the orders of this Court preference was to be given enbloc to Shikshamitra and net effect of the same was that merit was being compromised. Division Bench of this Court in the case of Parvati vs. State of U. P. and others, 2007 (6) ADJ 384, noted such factual position which has emerged and asked the State Government to consider and issue appropriate order considering the law laid down by Hon'ble Apex Court, keeping in mind the importance of basic education and protecting the interest of children, as the basic purpose of issuance of Government Order seem to impart basic quality education to the children of the State and not to give employment to lessor meritorious candidates as same would not serve the cause of the State, as they cannot be friends of education rather would be enemies of education. Once this thought was given by the State Government that merit was being ignored and in this background in order to strike balance in between merit and experience, policy decision has been taken to award bonus marks to instructors/supervisors, the question is as to whether any rights of the petitioners has been infringed or not. The nature of the scheme shows that it is not employment oriented scheme, rather it is an scheme to serve the society. To frame policy qua implementation of the scheme is the domain of the State Government and once the State Government in its wisdom has proceeded ahead to frame the policy and in lieu of providing enbloc preference, to Instructors of non formal education provision has been made to award bonus marks, then the said policy cannot be said to have infringed the rights of the petitioners in any manner, whatsoever. The law is well settled that the Courts ordinarily do not interfere with the policy decision taken and judicial review is permissible only when some fundamental rights guaranteed by the Constitution are infringed or some power has been exercised colourably, mala fidely and capriciously. Policy decision is to be left to the State Government, as it alone can adjudicate upon the things under consideration after considering it from all angles. Hon'ble Apex Court in the case of State of Orissa vs. Gopi Nath, AIR 2006 SC 651, has taken the view that in the matter of policy decision, discretion by the State Government, so long as infringement of fundamental rights is not there, cannot be interfered with, and the Court should not substitute its own judgment in the judgments of the executive in such matters. In so far as propriety of the decision of the State Government is concerned, the Court cannot interfere even if second view is possible on the said aspect of the matter. Hon'ble Apex Court in the case of Yogesh Kumar Vs. Government of NCT, Delhi, JT 2003 (2) SC 453 has taken the view that it is always open to recruiting authorities to evolve policy of recruitment and to decide the source from which recruitment is to be made. Hon'ble Apex Court in the case of Sanjai Kumar Manjul Vs. Chairman UPSC, AIR 2007 SC 254, has taken the view that it is statutory authority alone which has the authority to frame rules, as well as the qualifications and Courts have no authority to interfere with the same. In the present case decision in question, which has been taken by the State Government, therein conscious policy decision has been taken to strike balance in between merit and experience, and for the experience which has been acquired by the instructors/supervisors for the same they have been suitably rewarded by awarding marks in lieu of the same. Same is policy decision and same is no way violates any fundamental right or violation of any statutory ruled regulation. Petitioners' claim that as they have worked in non-formal education scheme, they have got every right to get preference in the matter of selection and appointment of Shikshamitra, their experience cannot be ignored. Earlier there has been judgment of this Court dated 17. 08. 1999 and even qua said judgment this Court had clearly mentioned that view point of the law laid down by Hon'ble Apex Court have to be looked into. The view point of Hon'ble Apex Court, has clearly and categorically held that non-formal education centres cannot be equated with the primary schools, which are regularly run by the Education Department of the State Government, apart from the basic qualitative differences between the two institutions even the nature of work of the non-formal instructors and the primary school teachers is not identical. The method of appointment, the source of recruitment, method of teaching, hours of teaching and the mode of payment are entirely different. Thus, in the facts of the case the employees working under non-formal education could not ask more than what was intended to be given to them under the scheme. While working in non-formal education scheme, at no point of time any assurance was given to such instructors/supervisors that there was any permanency qua their engagement. Qua the said scheme in case under judicial order some right has been conferred, and even qua the same Hon'ble Apex Court has clearly mentioned to take final decision, keeping in mind the judgment of the Apex Court, and on subsequent occasion, Division Bench of this Court in the case of Parvati Devi (supra) has noted the way and manner in which merit was being sacrificed at the cost of experience. In these circumstances and in this background once conscious decision has been taken to strike balance in between merit and experience, Government Order dated 06. 05. 2008 cannot be said to be suffering from any unreasonableness or arbitrariness, rather to the contrary the object of keeping balance in between merit and experience is being achieved and none of the legal or vested right of petitioners has been infringed. Consequently, writ petitions fail and they are dismissed. .