Sabha Bahadur Verma vs State of U.P.and Others

H.L. Gokhale, CJ.

Review Petition No.291 of 2006 Heard Mr. Ramesh Pandey, learned counsel for the applicant in Review Petition No.291 of 2006 and Mr. H.G.S. Parihar, who appears for respondent No.5 to the review petition, who is the contesting respondent Mr. Vinay Misra, appears for Smt. Nalini Jain, learned counsel for the Basic Shiksha Adhikari.

This review petition seeks review of the order passed by a Division Bench presided over by the then Chief Justice, Hon''ble Mr. Justice Ajoy Nath Ray and Hon''ble Mr. Justice Jagdish Bhalla on 5th of October, 2006. This order reads as follows:

�We are in respectful agreement with the reasoning given and the order passed by Hon''ble Mr. Justice S.N. Shukla, on the 19th of September, 2006.

We accept the submission of the respondent before us, who was opposite party No.5 in the Court below that he was selected on the basis of better merit, and that merit had never been given a go by in any of the concerned Government Order.

The appeal is dismissed.

Sd/Ajoy Nath Ray, CJ.

Sd/Jagdish Bhalla, J.

05.10.2006.�

Now what is to be noted is that the applicant herein is a person, who has put in longer number of years in the nonformal education scheme, as against respondent No.5, who has put in lesser number of years in the nonformal education scheme. Both were candidates for selection for the post of Shiksha Mitra. However, respondent No.5 had received better quality marks under the scheme of evaluation of the quality marks and on that basis respondent number 5 has been selected as the Shiksha Mitra. That selection had been challenged by the applicant herein by filing a writ petition bearing No.6713 (S/S) of 2006. That writ petition came to be rejected by the learned Single Judge. The rejection of the writ petition had led to Special Appeal No.685 of 2006, and the Division Bench upheld the order of the learned Single Judge, by passing the order quoted above.

Mr. Pandey, learned counsel appearing for the applicant submitted that between two candidates coming from nonformal education scheme, one who had put in longer years of service, had to be preferred. It is however, material to note that this preference between the two candidates coming from the nonformal education scheme was laid down by the State Government under its policy decision only on 24th of April, 2006. As far as respondent No.5 is concerned, the decision in his favour was given earlier, i.e. on 15.2.2006 by the Assistant Basic Education Officer by reversing the recommendation in favour of the applicant, which was made on 9.12.2005. Now it is clear that on 15.2.2006, there was no such preference in favour of a candidate, who had put in more years of service under the nonformal education scheme.

This being the position, the decision of the Assistant Basic Education Officer as on 15.2.2006, selecting a candidate, who had better quality marks could not be faulted, that is what the learned Single Judge had done, and which order was left undisturbed by the Division Bench.

Mr. Pandey, learned counsel for the applicant has drawn our attention to a judgment of a Full Bench of this Court and submitted that the preference for a candidate, who had put in longer years of service in the nonformal education scheme was implicit in the earlier policy of 10.10.2005. Clause7 of this policy is relied upon. This clause when translated from Hindi into English reads as follows:

�While giving a relaxation of an outer side of five years to the persons, who had worked as Instructors/Supervisors in the formerly run ''nonformal education scheme'', they will be appointed with first priority (Pratham Variyata). All other conditions for appointment will apply to them.�

Although the submission of Mr. Pandey is quite attractive, the text of this rule does not say in any manner that between the two candidates, who have come from the nonformal education scheme, one who has put in longer years of service is to be preferred. The rule is clear. It says that those Instructors/Supervisors, who have put in service in the nonformal education scheme, are to be preferred on the basis of first priority (Pratham Variyata). They are obviously to be preferred, as against the candidates, who are not coming from the nonformal education scheme.

The contest between the two candidates, both coming from the nonformal education scheme, was not under the contemplation of the Government at the relevant time and, therefore, there is no specific provision in that policy nor can it be read into this rule as sought to be canvassed by Mr. Pandey.

Mr. Pandey, then submitted that as far as this term of ''first priority'' (Pratham Variyata) is concerned, it came to be interpreted by a Full Bench, of which one of us (Justice H.L. Gokhale, C.J.) was a party, in the case of Daya Ram Singh v. State of U.P. and others, reported in 2007 (3) ESC 1760 (All) (FB): 2007(25) LCD 1427. Now as the facts of the judgment in that matter disclose, the controversy in that matter was between the two persons one coming from the nonformal education scheme and the other from outside that scheme. The candidate from outside that scheme had secured better quality marks and on the basis of a judgment rendered earlier by a Division Bench in Smt. Kanti Singh Yadav v. State of U.P. and others, reported in 2007 (2) ESC 805 (All) (DB), it was canvassed that for preference, the two candidates ought to have equal marks and then only there will be a preference for a candidate coming from the nonformal education scheme. The Full Bench has interpreted the relevant rules and has held that there is an enbloc preference for the candidates from the nonformal education scheme, as against those coming otherwise. This judgment, therefore, cannot help the applicant.

As far as the clarification, which the State Government has issued later on in April, 2006 is concerned, obviously it will not apply retrospectively and it has to apply prospectively and, therefore, the decision in faovur of respondent No.5 could not be faulted. In our view, therefore, there was no error of law in any manner in the decision of the Division Bench which dismissed the Special Appeal filed by the applicant herein.

The review petition is, therefore, rejected.

Special Appeal No.681 of 2007:

This appeal is preferred by respondent No.5 to the above review petition. Now, what has happened is that after the selection of Respondent No.5. Respondent No.5 was supposed to work for one year. Thereafter, the question came for renewal and the Village Education Committee looked into the work put in by respondent No.5 and was of the view that respondent No.5 had put in good work. Respondent No.5 was, therefore, recommended for continuation. The Committee in its meeting held on 14.6.2006 observed that respondent No.5 had put in excellent work as Teacher and, therefore, he be continued for the next academic year. The applicant herein had put in his application for the new academic year. However, the Committee observed that since there was no direction of the higher authorities, as far as his application is concerned, the application was not being considered. The fact however, remains that the Committee in terms held that respondent No.5 had put in excellent work during the academic year for which respondent No.5 was appointed. This continuation of respondent No.5 led the applicant herein to file another writ petition to challenge that continuation. That writ petition was Writ Petition No.3345 (S/S) of 2007. The said writ petition came to be rejected by a learned Single Judge by his order dated 18.6.2007. However, the learned Single Judge made certain observations in his order. This order passed by the learned Single Judge reads as follows:

�Heard.

Controversy involved in the present writ petition, relates to the appointment on the post of Shiksha Mitra.

Since it has been admitted by the learned Standing Counsel that the appointment for the post of Shiksha Mitra is done only for a period of one calendar year, which shall expire by the end of May, 2007, I am not inclined to interfere at this stage.

However, it is provided that respondents shall hold fresh selection for the next session of 200708 in accordance with rules and the petitioner''s case will also be considered alongwith others.

Subject to above, writ petition is disposed of finally. No order as to costs.

Sd/ Rajiv Sharma, J.

18.6.2007.�

The aforesaid order itself indicates that the learned Single Judge in the second paragraph of the order declined to interfere by observing that the appointment of Shiksha Mitra was only done for one year, therefore, he was not inclined to interfere. The learned Single Judge however, directed in the next paragraph that the respondents shall hold fresh selection for the next academic year of 200708. Respondent No.5 to the review application is aggrieved by this decision and, therefore, respondent No.5 has filed a special appeal bearing Special Appeal No.681 of 2007.

Mr. Parihar, learned counsel for the appellant (sic) submitted that under the Government Policy dated 10.10.2005, the selected candidates are eligible for renewal, if they put in good work. The education Committee of the village had observed that respondent No.5 had put in good work and, therefore, respondent No.5 was eligible for renewal. Therefore, the observation of the learned Single Judge and the direction that a fresh selection be held, be interfered with.

Mr. Pandey, learned counsel for the applicant, on the other hand, submitted that after the policy change of the State Government that the preference would be given to a person, who had put in longer years of service in the nonformal education scheme, the applicant was entitled to be considered. He submitted that the policy change on 24.4.2006, ought to be applied in the facts and circumstances of the present case. According to him, it is only clarificatory.

Now it is well settled that such clarification will be prospective. This is laid down by the Apex Court in Secretary, A.P. Public Service Commission v. B. Swapna and others, reported at 2005 (2) ESC (SC) 247, which law has been followed by a Division Bench of this Court in Km. Rita Yadav v. State of U.P. and others, reported at 2007 (25) LCD 626.

This being the position, the clarification of April, 2006 cannot help the applicant. If the selection of respondent No.5 was legal on the date on which he was selected, he was entitled to be considered for renewal, if he had put in good service. The concerned Village Education Committee found that he had put in good service and, therefore, the Committee recommended for his renewal. In that state of affairs, there is no question for holding fresh selection.

In the circumstances, we allow this appeal filed by respondent No.5 to the review petition, and set aside the order passed by the learned Single Judge, and hold that respondent No.5 will be eligible to be considered and then to be renewed in the post, if the Committee wants to renew him on the basis of good service that he had put in.

The appeal is allowed.

(Ordered accordingly)