Janki Prasad Verma vs District Magistrate and Others

Zaki Ullah Khan, J.—Case called out. None is present on behalf of the respondent Nos. 3 & 4 to press the petition. Instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner praying that a direction in the nature of certiorari quashing the impugned order dated 21.03.2012 passed by the respondent No. 3, District Education Committee, Balrampur and a direction in the nature of mandamus commanding the respondents to consider the appointment of the petitioner on the post of Shiksha Mitra be issued in accordance with Government Order dated 24.04.2006.

By way of the instant petition, the petitioner challenged the arbitrariness of the order passed by the respondent No. 2 dated 21.03. 2012 by which he has rejected the claim of the petitioner for appointment on the post of Shiksha Mitra in primary school Radhika Nagar, Village-Sahjaura, District-Balrampur on the ground of arbitrariness that vide order dated 11.08.2011 passed in Writ Petition No. 5027 (S/S) of 2011; this Court was pleased to pass the specific direction to the respondent No. 2 to consider the matter; that after considering the matter and report of Assistant Basic Shiksha Adhikari (hereinafter referred to as "ABSA") Rehra Bazar, Balrampur as well as the Government Order dated 24.04.2006, the petitioner was not given appointment; that the respondent No. 2 has admitted that the petitioner is one month senior to the respondent No. 4 but since the petitioner and the respondent No. 4 have not submitted their experience certificate, the respondent No. 4 having better qualification has been given appointment; that the impugned order has been passed negligently on the basis of Government order dated 24.04. 2006 as well as report of the ABSA, a photocopy of the order dated 21.03.2012 has been filed as Annexure No. 1 to the writ petition; that on 24.04.2006, the State Government issued a Government Order regarding Shiksha Mitra wherein, it has been provided that if in a Gram Panchayat against one post of Anudeshak more than one Anopcharik Anudeshak are available the priority will be given to the person who has longer service tenure, a copy of the Government Order dated 24.04. 2006 has been filed as Annexure No. 2 to the writ petition; that the ABSA has advertised for the post of Shiksha Mitra for the aforesaid village that in the advertisement it was specifically provided that in case of more than one Anopcharik Anudeshak for single post the Anopcharik Anudeshak who has longer service tenure shall be given priority, a copy of the advertisement has been filed as Annexure No. 3 to the writ petition; that the petitioner applied for the post of Shiksha Mitra in the aforesaid primary school on 02.11.2007 and Basic Shiksha Adhikari (BSA) prepared the merit list and send for proposal to the District Education Level Committee; one post was reserved of Other Backward Class (OBC) female and the other one that for Anopcharik Anudeshak; that the candidature of the petitioner ought to have been considered for Shiksha Mitra; that the District Education Level Committee did not take any decision on the appointment of the Shiksha Mitra; that the petitioner filed a Writ Petition No. 1824 (S/S) of 2008 before this Court and this Court was pleased to pass an order directing the District Magistrate, Balrampur to decide the representation of the petitioner in accordance with law, a copy of the order has been annexed as Annexure No. 6 to the writ petition; that on 15.07. 2008, the District Magistrate, Balrampur has rejected the representation of the petitioner and mentioned that though the petitioner and the respondent No. 4 having similar service, respondent No. 4 having better merit has been selected; that the District Magistrate, Balrampur overlooked the facts; that the petitioner is senior to the respondent No. 4 by one month; that the order passed by the District Magistrate on 15.07.2008 has never been communicated to the petitioner; that on 04.12.2008, on the complaint of the petitioner, B.S.A. sought report from the ABSA as whose service tenure is longer; that ABSA submitted report that the petitioner is one month senior to respondent No. 4, a copy of the report has been filed as Annexure No. 7 to the writ petition; that on 22.07.2008, the respondent No. 4 was selected, hence this petition; that on 23.01.2009, the B.S.A., Balrampur forwarded report of the ABSA to the District Magistrate, Balrampur on which the District Magistrate, Balrampur passed an order to the effect that since the petitioner is senior to the respondent No. 4, the B.S.A. was directed to cancel the selection of the respondent No. 4 and directed to take a fresh decision on the said selection, a copy of the same has been filed as Annexure No. 9 to the writ petition.

The opposite party No. 2 alone has filed counter affidavit and only explanation submitted in counter affidavit is that both are having equal service and getting equal salary as Anudeshak, therefore, the rule will not be applicable as this was the discretion of the selecting authority, since both had equal merits.

Learned counsel for the petitioner however in rejoinder affidavit denied this fact and he has pointed out that there is specific order to this effect and also the Government Order which is Annexure No. 2 which specifically mentioned that the priority would be given to those persons for the post of Anudeshak who have longer tenure and admittedly the petitioner was having longer tenure, one month longer than the respondent No. 4. The District Magistrate Balrampur''s order in Annexure No. 9, is specifically mentioned that the selection committee should reconsider the matter on the basis of the ABSA report, ABSA in his report mentioned that the petitioner is one month senior to the respondent No. 4.

Heard learned counsel for the petitioner as well as learned Standing Counsel and perused the record.

The advertisement regarding the appointment of the Shiksha Mitra, vide annexure No. 3, the condition No. 5 mentioned that in case of tally between the two Anudeshaks the priority would be given who is having longer tenure. The argument put forth by the learned Standing Counsel and the reply given by the B.S.A. is that both were getting same salary would not be applicable because conditions specifically mentioned that one who is having longer tenure should be given priority. This is admitted case that the petitioner was appointed one month earlier to the respondent No. 4. It has also been argued that since the respondent No. 4 is better qualified and most suitable will not be applicable here because the conditions in the Government Order as well as advertisement are entirely different although this condition says that one who has longer tenure shall be given place. As far as qualification and suitability is concerned, there was neither the criteria nor any pre condition, it was not the discretion of the selecting authority to substitute their own choice. Choice is limited as per condition mentioned in the Government Order as well as in the advertisement. When the conditions are specific neither the BSA nor the District Magistrate can interfere with the direction of the Government. There are no two opinions about it that the concerned authority violated the norms and overstepped the jurisdiction by importing the conditions that qualification and suitability is the criteria whereas these things are very specific that in case of tie, priority will be given to that person who is having longer tenure. Admittedly, the petitioner was having one month longer tenure than the respondent No. 4, therefore, the petition deserves to be allowed. The writ petition is allowed and the impugned order dated 21.03.2012 is quashed and mandamus is issued to respondent Nos. 1 and 2 to consider the appointment of the petitioner on the post of Shiksha Mitra in the light of the Government Order and advertisement within a period of one month from the date of production of certified copy of this order.