GANGA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) EARLIER, one Harish Chandra had filed writ petition No.48038 of 2008 before this Court and this Court on 16.09.2008 had passed following order, which is being quoted below: "Heard learned counsel for the petitioner, the standing counsel for respondent nos. 1 to 3, Sri Ravi Shankar Prasad, counsel for the respondent no.4 and Sri V.V. Singh, counsel for respondent no.5. With the consent of learned counsel for the parties this writ petition is being disposed of finally at the admission stage itself. In view of the nature of order proposed to be passed in this writ petition it is not necessary to hear respondent no.6 at this stage. The contention of learned counsel for the petitioner is that the petitioner was selected as Shiksha Mitra and was sent for training. After completing his training he has also joined as Shhiksha Mitra Parai, Ugrasenpur, District Kaushambi. It appears that respondent no.2 has passed an order on the application moved by respondent no.6 cancelling the appointment of the petitioner and appointing respondent no.6 in his place. A representation was moved by the petitioner before the District Magistrate in this regard. Thereafter writ petition No. 1563 of 2008 was filed by the petitioner against his termination of his services as Shiksha Mitra. It appears that the appointment of the petitioner has been cancelled in view of the Government order dated 24.4.2006 and an advertisement for fresh appointment in question was made on 10.3.2006. It is submitted by the learned counsel for the petitioner that the appointment of the petitioner could not have been cancelled without giving him an opportunity of hearing in pursuance to the Government order dated 24.4.2006 which is not applicable from the retrospective effect. In this regard he has relied upon a judgment of the Division Bench of this Court dated 15th March, 2007 in Km. Rita Yadav V/s State of U.P. and others, (2007) (2) ESC 788 (All) wherein it has been held that the Government order dated 24th March, 2006 is applicable from the date of prospective effect and not from the date of retrospective effect. Since that proposal for appointment of the petitioner has been made on 7.42006 and the selection process has started before initiation of the Government Order dated 24.4.2006. The writ petition is allowed in terms of the judgment dated 15th March, 2007 in Rita Yadav's case (supra) and the District Magistrate is directed to decide the representation of the petitioner in the light of the judgment aforesaid in Rita Yadav's case (supra) afresh within a period of 6 weeks from the date of production of a certified copy of this order." Pursuant to aforementioned order passed by this Court, the District Magistrate examined the matter and thereafter proceeded to cancel the recommendation made in favour of the petitioner and directed that as per existing policy Harish Chandra be permitted to function as Shikshamitra. At this juncture present writ petition has been filed. Learned counsel for the petitioner, Sri Arvind Kumar Shukla, Advocate, contended with vehemence that petitioner's selection had been validly made, as his experience as Anaupcharik Anudeshak was much more in comparison to Harish Chanda, and in this background cancellation order is unsustainable in the eyes of law, as such writ petition deserves to be allowed. Countering the said submission, learned Standing Counsel as well as Sri R. S. Prasad, Advocate, on the other hand, contended that the decision taken is strictly in consonance with the policy formulated, which existed on the relevant date, and in this background no relief can be accorded to the petitioner. After respective arguments have been advanced, factual position which emerges in the present case is that for getting appointment on the post of Shikshamitra, petitioner as well as Harish Chandra along with few others had applied for consideration of their candidature. Both of them were having Anaupcharik Anudeshak experience, but at merit of Harish Chandra higher, resolution was passed in his favour by Gram Shiksha Samiti. District Level Committee on the strength of Government Order dated 24.04.2006 as experience of the petitioner was much more, as such he was given preference and his name was recommended for the post in question. Said selection had been subject matter of challenge before this Court, and this Court asked the District Magistrate to decide the controversy in the light of dictum of this Court dated 15.03.2007 given in the case of Rita Yadav. Thereafter, the District Magistrate proceeded to examine the matter and found that advertisement was issued on 10.03.2006 and the Gram Shiksha Samiti vide its resolution dated 07.04.2006 gave preference to the candidates having Anaupcharik Anudeshak experience and name of Harish Chandra, who was having the higher merit status amongst Anaupcharik Anudeshaks was selected. It is well settled that the candidature of a candidate has to be considered as per the law existing on relevant date. Since in the present case selection took place on 07.04.2006 and the vacancy was advertised on 10.03.2006, therefore, the benefit of Government Order dated 24.04.2006, which provides that Anaupcharik Anudeshak will have to be given preference vis-a-vis as per length of their experience. Since prior to 24.04.2006 Anaupcharik Anudeshaks were to be given first preference in the matter of selection and appointment on the post of Shikshamitra and in the present case there were two Anaupcharik Anudeshaks and thus as per existing policy prior to 24.04.2006 both of them were to be given preference, therefore, the authorities in their wisdom on the basis of merit recommended the name of Harish Chandra. Said action taken was rightful action as per the policy which held the field at that relevant time. The Government Order dated 24.04.2006 could not have been made foundation and basis for selection in the present case, as in the case of Rita Yadav vs. State of U.P. and others (2007) (2) ESC 788 (All) this court has held that the Government Order dated 24.04.2006 will apply prospectively and not retrospectively, as such benefit of this G.O. was not at all applicable to the petitioner. The action taken by respondents is strictly in consonance with the policy existing on the relevant date and the same warrants no interference. Consequently, writ petition fails and the same is dismissed.