Smt. Sunita Devi vs State of U.P. and Others

Hon''ble Pradeep Kumar Singh Baghel, J.—The petitioner filed the present writ petition under Article 226 of the Constitution of India aggrieved by the order of the respondent no. 2, the District Magistrate, Sidharth Nagar dated 8.5.2008, whereby the district Magistrate has approved the appointment of respondent no. 5 as Shiksha Mitra for the Academic Session 2007-08.

The short facts leading to the present writ petition are that the petitioner is an unemployed lady, who belongs to Other Backward category. The Basik Shiksha Adhikari, Sidharth Nagar on 3.10.2007 invited the applications for the appointment as Shiksha Mitra for the primary school Paraspur, Banjara Deeh Block and Tehsil Dumariaganj, District Sidharth Nagar.

Learned counsel for the petitioner submits that the respondent no. 5 was the applicant for the Academic Session 2006-07 and she was not selected. In pursuance of the notice dated 3.10.07, the petitioner had submitted her application along with other candidates and on the basis of her highest marks, her name was placed at serial no. 1. A copy of the proposal dated 8.10.2007 and the communication dated 1.2.2008 are filed as annexure -2 and 2-A to the writ petition. While the matter was pending, the respondent no. 5 concealing the fact that she was an applicant for Academic Session 2006-07, she approached this Court by means of a writ petition no. 54211 of 2007. On 12.11.2007 an order was passed by this Court to consider the representation of the respondent no. 5 ( petitioner therein). In pursuance of the order of this Court dated 12.11.2007, the District Magistrate, the respondent no. 2 has passed the impugned order.

I have heard Sri D.K.Srivastava, learned counsel for the petitioner and Sri Ramesh Chandra for the respondent no. 5.

Learned counsel for the petitioner submitted that the respondent no. 5 has concealed the fact before this Court in the earlier writ petition that she was an applicant for the Academic Session 2006-07 and the petitioner''s name has been found suitable for the Academic Session 2007-08. The petitioner has secured the highest marks in the selection. Her name was proposed for the appointment as Shiksha Mitra for the Academic Session 2007-08. While, the said proposal was pending consideration by the authority concerend, the District Magistrate had passed the impugned order in compliance of order of this Court. Learned counsel for the petitioner further submitted that the appointment of Shiksha Mitra is for the only one year and this Court has taken a consistent view that the scheme of Shiksha Mitra is to spread eduction and it is not a scheme for employment. The appointment comes to an end at the end of the academic year. Learned counsel for the petitioner relied on the two judgments of this Court in the Case of Smt. Meera Pandey Vs. State of U.P. and another, reported in { 2008 (2) ESC 1481 (All) ( DB)} and the case of Km. Sarita Yadav Vs. State of U.P. and others, reported in [ 2008 (7) ADJ 571].

The learned Single Judge followed the judgment of Sanjay Kumar Singh Vs. State of U.P. and others in Special Appeal No. 305 of 2008 and relevant part of the judgment of the said Special Appeal ( supra) is extracted as follows, " Everybody is forgetting that the scheme of Shiksha Mitra is to spread education and it is not a scheme for employment. What is being given is an honourarium to the concerned teacher. The appointment comes to an end at the end of the academic year, with righ to continue if the performance is good".

Learned counsel has also submitted that before passing the impugned order no opportunity has been given to the petitioner. The said paragraph has not been denied in the paragraph no. 7 of the counter affidavit. Moreover, from perusal of the impugned order itself it is manifest that the petitioner was not heard. This fact is evident from the order of District Magistrate as the copy of the order was endorsed to only respondent no. 5 and not to the petitioner. After the impugned order was passed, the petitioner submitted two applications to the District Magistrate on 15.5.2008 and 15.6.2008, which have been filed as annexure 4 and 4-A to the writ petition.

Learned counsel for the respondent no. 5, Sri Ramesh Chandra submits that since the selection of the Shiksha Mitra for the year 2006-07 had continued, therefore, there was no occasion to issue a fresh advertisement by the Basic Shiksha Adhikari on 3.10.2007. Learned Standing Counsel submitted that for the academic session 2006-07 only two applications were received.

Having heard the learned counsel for the parties, I am of the view that the District Magistrate has failed to consider the important aspect of the matter that the selection for the academic session 2006-07 could not be made and it was over and a fresh notice was issued by the Basic Shiksha Adhikari on 3.10.2007 inviting applications for the academic session 2007-08. The said notice has not been challenged by the respondent no. 5 and on the basis of the order passed by this Court, the District Magistrate has passed the order without giving opportunity to the petitioner. It is undisputed fact that in pursuance of the notice dated 3.10.2007, the petitioner made an application. List of proposal was made in her favour on account of having the highest marks/merit. Hence, she was a necessary party before the District Magistrate. However, without issuing any notice and without affording any opportunity to the petitioner, the District Magistrate has passed the impugned order. When this writ petition was entertained on 23.7.2008, the effect and operation of the order dated 8.5.2008 passed by the District Magistrate was stayed. The said interim order has been extended from time to time. The impugned order dated 8.5.2008 is set aside and the matter is remitted back to the District Magistrate Sidharth Nagar to consider the matter afresh in the light of judgment of this Court ( Supra) and after affording the opportunity to both the parties. The District Magistrate shall take decision within one month from the date of production of a certified copy of this order before him.

Both the parties are given liberty to file a fresh representation and documents before the District Magistrate.

Sri Ramesh Chandra appearing for the respondent has no objection for remitting the matter back to the District Magistrate, Sidharth Nagar.

The writ petition is disposed of accordingly.