SADHNA PATHAK Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) HEARD the learned counsel for the appellant Sri Y.K. Misra and Sri B.R. Tripathi for respondent no. 4. The appellant challenges the order dated 23.7.08, by means of which the learned Single Judge has issued a direction to the State, respondent to the writ petition for considering the matter of appointment of private respondent on the post of Shiksha Mitra in accordance with the Government orders, which were in force on the date of advertisement as well as on the date of selection made by the Gram Shiksha Samiti i.e. the Government orders dated 10.10.05 and 24.4.06. The appellant challenged the aforesaid order asserting that she was a necessary party in the writ petition but without impleading her and without disclosing before the learned Single Judge that in the selection held she was placed at serial no. 1, the said order has been obtained but in the meantime this order has ousted her from the arena of selection. Her submission is that, as a matter of fact, the private respondent did not claim for preference being Instructor in Informal Education when she applied for the post of Shiksha Mitra alongwith original application form and later on, though she made such a claim. This fact is, however, being disputed by the learned counsel for the respondent who says that she had given all necessary documents for claiming preference having worked as Instructor in Informal Education. Learned counsel for the appellant further says that the appellant was rightly selected and was entitled for being given posting/appointment but because of the impugned order, which has been obtained without affording opportunity to the appellant, her case is being ignored and the private respondent is likely to be given appointment. Since no appointment has yet been made, both the parties, namely, appellant and the private respondent, are claiming right of first appointment and the impugned order has been passed without giving opportunity to the appellant as she was not impleaded by the respondent, knowing fully well that she stands selected and that if the Government order of 6.5.08 is interpreted by the Court, which goes against the present appellant, her right would be effected, even if she was not impleaded as a party. We, under the circumstances, direct that the case of both the parties, namely, appellant and the private respondent be considered by the District Magistrate before giving appointment to any person in pursuance of the order passed by the learned Single Judge. We further observe and clarify that any observation made by the learned Single Judge with respect to the interpretation and applicability of any Government order would not be binding, as the matter is being remitted to the District Magistrate by this Court, keeping in mind that in case the matter is remitted to the learned Single Judge, it would not be of any assistance to any party and the post of Shiksha Mitra would lie vacant. We, therefore, direct that the District Magistrate shall look into the matter and shall pass necessary orders taking into consideration all relevant Government orders, and the documents and evidence as might be led. The order shall be passed after giving opportunity to both the parties. This shall be done within a maximum period of six weeks. The special appeal is disposed of accordingly.