SANTOSH KUMAR PRAJAPATI Vs. STATE OF U P

JUDGEMENT

(1.) PRESENT writ petition has been filed by the petitioner who was one of the candidate for being appointed as Shiksha Mitra at village Panchayat Rekuwa Nasirpur opposing the name of the nephew of the village Pradhan, on his being recommended for being appointed as Shiksha Mitra. Prayer made in the writ petition being quoted below; "(i) Issue a writ, order or direction in the nature of mandamus commanding to respondent no. 1 to issue a fresh order in showing the relations as the qualification as provided in the U.P. Recognized Basic Schools, Junior High Schools (Recruitment and Conditions of service of Teacher Rules 1978. (ii) Issue a writ, order or direction in the nature of certiorari quashing the proposal of the village Panchayat, Rekuwa Nasirpur proposing the name of the nephew of the village Pradhan. (iii) Issue any writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (iv) to allow the writ petition and award the cost in favour of the petitioner." Brief background of the case is that Specialist District Basic Education Officer issued an advertisement on 27.10.2005 inviting application for making selection and appointment on the post of Shiksha Mitra. Petitioner and various other candidates had applied for consideration of their claim pursuant to the said advertisement. Petitioner has stated that he was called by the Headmaster of the institution of Basic Primary School, and thereafter he acquired knowledge that proposal thereafter has been sent recommending the name of Akhilesh Kumar Ram who is no one else but real nephew of the Pradhan of the village. Petitioner has contended that he objected to the same that such recommendation could not have been made. Petitioner submits that said recommendation was made keeping in view the provision as contained in Clause 8 of the advertisement. Petitioner has thereafter filed present writ petition with the prayer which has already been quoted above. Counter affidavit has been filed and therein precise plea has been taken that respondent no. 4 is handicapped person and pursuant to notification dated 27.10.205 had applied and his name has rightly been recommendation as he does not fall within prohibited category of relationship and further provision which has been relied upon are not applicable or attracted in the matter of selection and appointment of Shiksha Mitra. Counter affidavit has also been filed on behalf of State-respondents and therein same plea has been taken that there is no restriction on the appointment of nephew and respondent no. 4 does not fall within restricted zone and further State Government cannot be compelled to issue Government Order in particular manner which will suit the interest of the petitioner. After pleadings mentioned above have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties. Learned counsel for the petitioner Sri Sujeet Kumar, contended with vehemence that in the present case respondent no. 4 being closely related with Gram Pradhan was disqualified for being appointed as Shiksha Mitra and further relationship given in the Government Order was not illustrative and exhaustive, as such respondent no. 4 was disqualified for being offered appointment and further Government Order issued was liable to be corrected/modified accordingly, as such writ petition in question deserves to be allowed. Countering the said submission, learned Standing counsel as well as Sri S.P. Mishra, Advocate contended that framing of policy is in the domain of the State Government and once State Government in its wisdom as chosen not to disqualify the nephew from being offered appointment on the post of Shiksha Mitra then this Court cannot give direction to include nephew also in the list provided for and in this background writ petition as it has been framed and drawn is liable to be dismissed. After respective arguments have been advanced factual position which is emerging in the present case is that as far as scheme in respect of selection and appointment of Shiksha Mitra is concerned, said scheme has been launched to spread education and it is not at all scheme for employment rather said scheme is with laudable object to invite unemployed youth to come forward with the idea of community service and in lieu of imparting education, incumbent who functioned as Shiksha Mitra has to be given honorarium. Advertisement was issued on 27.10.2005 inviting application for making selection and appointment on the post of Shiksha Mitra. Said advertisement clearly and categorically provides that appointment cannot be offered to relative of Gram Pradhan who happens to be President of Gram Shiksha Committee and to the relative of Principal who happens to be Secretary of Gram Shiksha Samiti. Clause 8 specifically provided for the category of relationship which was prohibited and denuded from being offered appointment and same is inclusive of father, grand father, father in law, son, daughter in law, grand son, son in law, brother, sister, daughter, daughter in law, wife, wife's brother and mother. This Court in the Special Appeal No. 296 of 2005 decided on 21st March, 2005 reported in 2005(2)ESC 1199 took the view that where people's rights are involved and curtailment of the eligibility to appointment in a Panchayat is concerned, the prohibition has to be clear and accurate before a person can be barred from entering into a Panchayat service. Further view taken was that if rule making authorities were minded to stop a member's brother-in-law's son from being inducted in the same Panchayat, it would have specifically said so by prohibiting a brother-in-law son by express mention. Division Bench has clearly mentioned that it would be not open to the Court to find out different degrees of prohibition, which are not mentioned in the rule. This Court in the case of Smt. Kusum Singh Vs. State of U.P. and others reported in 2007(1)ESC 503(All) has taken the view that relationship identified in the said Government Order are exhaustive and not illustrative and since the mother-in-law has not been identified as close relative in the said Government Order petitioner is not disqualified for being appointed as Shiksha Mitra. Thus, it clear that ultimate authority to take decision in respect of incumbents who are to be restricted from being offered appointment is to be decided by the authority concerned and courts have no role to play in the same by adding and substituting something which otherwise is not provided in the rule. Courts ordinarily do not interfere with the policy decision taken, and judicial review is permissible only when same violates fundamental rights guaranteed by the Constitution or action taken is in colourable exercise of power, malafide or capricious. In assessing propriety of the decision court cannot interfere even if second view is possible on the subject matter. Here in the present case admitted position is that appointment on the post of Shiksha Mitra is governed by the various Government Orders issued from time to time, first being dated 10.07.2000 and modified from time to time on 10.10.2005. Said Scheme is clear and categorical that it is not at all employment oriented scheme rather said scheme has been formulated to invite youths of the village to come forward and participate in community service and in lieu of this participation provision of honorarium has been provided for. Appointment in recognized Junior High Schools run and managed by Basic Shiksha Parisad, U.P. at Allahabad and in the institution run and managed by private management under the provision of U.P. Basic Education Act, 1972 are governed by U.P. Basic Education(Teachers) Service Rules 1981 and U.P. Recognized Basic Schools, Junior High Schools (Recruitment and Conditions of service of Teacher Rules 1978 and therein selection and appointment are governed by statutory rule and same categorically provides the relative who are restricted from being offered appointment and the said rules are self explanatory. Said teachers constitute a separate class in itself. As far as Sub-rule 5 of Rule 165 of U.P. Panchayat Raj Rule 1947 and Sub-rule 4 of Rule 165 of 1947 Rules are concerned same prohibits appointment of relatives of Panchayat members relating to any post and therein explanation added to the same defines the word 'relation' meaning as father, grand father, father-in-law maternal and paternal uncle, son, grandson, son-in-law, brother, nephew, first cousin, brother-in-law, sister's husband, wife, wife's brother, son of nephew." Appointment of Shiksha Mitra is not all made under the provision of U.P. Panchayat Raj Rule 1947 as various posts against which appointments are to be made under Rules 1947 are clearly specified in the same. Shiksha Mitra cannot be equated with the regular staff of institution run and managed by private management under U.P. Basic Education Act 1972 or run and managed by the Basic Shiksha Parishad or regular employees of Panchayat. Therein appointments are governed by statutory rules, holding different qualification different selection criteria etc. as such they constitute separate class in itself with no comparison to Shiksha Mitra whose engagement is under scheme Consequently in the present case once policy makers in their wisdom have chosen not to restrict the nephew from being offered appointment as Shiksha Mitra then in this background in exercise of its authority of judicial review under Article 226 of the Constitution of India this Court cannot direct the State Government to include nephew also in the list provided for specially in the background that scheme in question is community service oriented scheme and not an employment oriented scheme and zone of consideration is limited to incumbents, who are resident of the same Gram Panchayat. Prayer which has been made is totally misconceived prayer as once said prayer is to be accepted then it would amount to usurping the authority of the State Government to issue Government Order and of farming policy as to who should be included in the zone of consideration and who should be ousted. Policy framed in the present case cannot be termed to be arbitrary and unreasonable and in this background prayer which has been made cannot be accepted. This Court cannot issue writ of mandamus for including nephew also for being disqualified for being appointed under Clause 8. Next question is as to what relief should be accorded at this stage, when academic session is already over. Placing reliance on the judgment in the case of Smt. Kusum Singh Vs. State of U.P. and others reported in 2007(1)ESC 503(All), it has been prayed by contesting respondent that directive be issued for offering appointment on the post of Shiksha Mitra as he is not at all at fault. Division Bench of this Court in the case of Sanjay Kumar Singh Vs. State of U.P. and others reported in 2008(4) ADJ 485 has clearly taken view that scheme of Shiksha Mitra is to spread education and it is not a scheme for employment. What is being given is an honorarium to the concerned teacher. The appointment comes to an end at the end of the academic year, with right to continue if the performance is good. In the said Division Bench of the is Court keeping in view the nature of scheme directed for denovo selection proceedings for academic order 2008-09 where selection proceedings could not be finalized for one reason or the other. View taken by Division Bench is contrary to the view of Single Judge, and as per judicial discipline Division Bench judgement is being followed. Consequently in the present case as selection is in reference of academic year 2005-06, said academic year has already been over and till date no one has been appointed on account of said litigation being on going, as such Specialist District Basic Education Officer is directed to undertake fresh selection proceedings for academic session 2009-10 preferably within next two months from the date of production of certified of this order strictly as per the policy framed in this regard. With the above direction present writ petition is disposed of.