SUDHIR KUMAR MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD the learned counsel for the appellant Sri O.P. Srivastava and Sri Manish Kumar for respondent no.1. Sri Vishal Verma has accepted notice on behalf of respondents 4 and 5, and Sri Jyotinjay Verma has appeared as special counsel. Though there is some delay in filing the special appeal, but we condone the delay. The appellant, Sudhir Kumar Mishra, feels aggrieved by an order passed by the learned Single Judge dated 25.11.08, by means of which, the Court quashed the order dated 21.10.08 rejecting the representation of the respondent no.1 for being appointed on the post of Shiksha Mitra and also issued direction to the rest of the respondents for acting upon the proposal of the Village Education Committee dated 25.10.07 and take necessary decision in the matter by a speaking and reasoned order as expeditiously as possible, preferably within a period of 15 days from the date of production of certified copy of the order. The controversy in nutshell before the learned Single Judge was as to whether in pursuance of the advertisement published by the Zila Basic Shiksha Adhikari, Gonda on 15.9.07 for making appointment of Shiksha Mitra, the respondent no.1 was entitled to get the appointment, in view of the fact that her name was found mentioned in the select list at serial no.1 and her name was also duly proposed for appointment on the post of Shiksha Mitra by the Village Education Committee by its proposal dated 25.10.07, which was forwarded to the District Level Education Committee on 1.3.08, but on which, no action was taken despite several representations being made by respondent no.1 and, therefore, she should be given appointment in pursuance of the said recommendation or not, now. It may be appropriate to mention that respondent no.1 had filed Writ Petition No.5717 (SS) of 2008 against the inaction on the part of the concerned authority in not considering the proposal made by the Village Education Committee, which writ petition was disposed of by the learned Single Judge on 9.9.08 with the direction that the respondent no.1 shall make fresh representation, which shall be considered and decided by the concerned authority by a speaking and reasoned order. In pursuance of the said direction, the case of respondent no.1 was considered but her plea did not find favour and the same was rejected by the order dated 21.10.08. The ground for rejection of the proposal was that the proposal for appointment of respondent no.1 was for the academic session 2007-08 and since the proposal of the District Level Education Committee is only for one session, therefore, it was not possible to appoint respondent no.1 as Shiksha Mitra in the academic session 2008-09. The learned Single Judge has considered that since in the Government Order dated 10.10.05, which regulates the selection and appointment of the Shiksha Mitra, there is a clause of renewal which indicates that in each and every academic session, fresh selection is not compulsory and accordingly, the proposal having been sent for appointment, the concerned authorities are under legal obligation to make appointment of the Shiksha Mitra and expiry of academic session does not make any difference. On the aforesaid plea, the learned Single Judge has allowed the writ petition with the direction as already mentioned above. Sri O.P. Srivastava, learned counsel for the appellant has submitted that the order passed by the learned Single Judge cannot be sustained as firstly the appellant was not impleaded as party in either of the two writ petitions and he was appointed in pursuance of a fresh advertisement made on 16.6.08 and his name was recommended for appointment on 26.12.08 and thereafter, he was sent for training. We find force in the argument of the respondent no.1 that the appellant was neither a necessary nor a proper party in the two writ petitions. Admittedly, at the time of filing of the first writ petition, i.e. 5517 (SS) of 2008, the appellant was not selected by that time and not only this, even on the date when the present judgement and order was passed in the present writ petition on 25.11.08, the appellant had no right as there was no select list prepared nor the appellant was sent for training. A person, who has not been selected nor has been sent for training nor has been given appointment, cannot be said to be a necessary and proper party, in case an aggrieved person who has been in the select list and has not been given appointment comes to the Court, seeking implementation of the aforesaid list or if a person whose services has been terminated comes to the Court, challenging his termination order. A person who is likely to be effected by the order of the Court, would undoubtedly be an aggrieved person and a necessary party, but if such person is not effected or cannot be taken to be effected, he cannot be treated to be an aggrieved person nor a necessary and proper party, for the simple reason that if the respondent no.1 was having a prior right of appointment on the said post, her right shall not stand defeated for the inaction of the authorities, and if any appointment is made in the meantime, during the pendency of the case before the Court, such subsequent appointee, will get no legal right to hold the post, in case the Court comes to the conclusion that the respondent no.1 was illegally deprived of the appointment. In the instant case, the appellant thus, was not a necessary party. On merits, learned counsel for the appellant submits that since the appellant was appointed on the post of Shiksha Mitra for the academic session 2008-09 and he having been selected for training, the respondent no.1 could not have been directed to be appointed or could be considered for appointment in the academic session 2008-09. This plea also does not persuade us to hold that the order passed by the learned Single is not correct and suffers from infirmity. A Division Bench of this Court in the case of Pramod Kumar Singh and another vs. State of U.P. and others 2008 (26) LCD 682 has held that 'it is a cardinal principle of law that if a person has been appointed for one academic session and if the said post is to continue and the work is to be taken for the same purpose in the same institution or school, such a person cannot be replaced by another person who is to be appointed against for only one academic session, nor he can be asked to leave for giving way to another fresh appointment.' The Court has also considered in the said judgement as follows: "We would like to further place on record that there is a Government Order dated 10.10.05, which permits renewal of appointment on the post of Shiksha Mitra. Sri M.M. Asthana, appearing for the Basic Shiksha Adhikari does not dispute that renewals are being made and that the aforesaid Government Order is applicable in the present scheme also." In paragraph 11 of the report, the Court said that 'Apart from the fact that the Government Order does permit renewal of appointment of Shiksha Mitra, it is also to be noted that Shiksha Mitra Scheme has been made to provide education in the village and rural sectors. It is not the scheme solely for the purpose to give employment to the local inhabitants, who qualify for the purpose but largely, it is a scheme for providing literacy and education to the inhabitants of the locality and the area. The qualification, the eligibility and the manner of appointment of Shiksha Mitra have thus been made in a manner so that the same may suit to the local climate and local atmosphere. The honorarium which is paid, is not the salary, but is only a remuneration for the work done and to propagate the scheme of education in the villages and rural areas.' In another Division Bench judgement of this Court in the case of Virendra Kumar Shukla vs. District Magistrate/President District Level Education Committee and others (Special Appeal No. 636 of 2007), almost the same plea was raised regarding academic session, for which the recommendation was made and whether such appointment can be renewed. In this case the Court observed as under: "The order passed by the learned Single Judge thus cannot be sustained and is liable to be set aside on this ground and also on the proposition of law that the selection/appointment of the appellant could not have been nullified merely because after selection though she was sent for training but some aggrieved person filed the writ petition and thereafter the matter took some time in reaching the correct conclusion. If the selection/appointment so made are allowed to be frustrated because the matter is brought to the Court by some dis-satisfaction element, it will not make the whole process of selection a farce and despite the fact that the person is duly selected would be deprived of getting appointment for no fault of his/her and for no valid reason, merely because the other person who could not be selected moves to the Court and even though the Court does not accord any finding in favour of the person coming to the Court namely the petitioner, the selection/appointment shall automatically become invalid. This cannot be the intention of the scheme nor the duly selected candidate can be deprived of his/her appointment nor his/her appointment may be said to be invalid for that reason." We are convinced with the view expressed by the aforesaid two Division Bench judgements, in which, one of us (Pradeep Kant, J.) was a member, that the appointment of Shiksha Mitra cannot be refused to a duly selected person merely on the ground that before the said select list could be implemented or the selected candidate could be sent for training, some dispute has arisen or there has been inaction on the part of the concerned authority in implementing the said select list without any rhyme and reason and because the matter before the Court took some time, because of which the academic session in which the said selection has been made stands expired as by lapse of time neither the cause would be vanished nor the right of appointment can be negated. There is a provision in the scheme itself for renewal of the term of the Shiksha Mitra. There cannot be any doubt that Shiksha Mitra once appointed would continue till his/her services are dispensed with. Sri O.P. Srivastava, lastly says that in case any other vacancy is available in the district, the appellant be directed to be accommodated therein. We do not find any material before us to issue any such direction, but we leave it open to the Zila Basic Shiksha Adhikari that if in the district, the appellant can be accommodated in any other vacancy as per rules, he may be accommodated. The special appeal is dismissed.