Srinivash Sharma vs State of U.P. and Others

Ashok Bhushan, J.—These two writ petitions raising common questions of law and facts have been heard together and as agreed by learned Counsel for the parties, are being decided by this common judgment.

Heard Sri R.C. Dwivedi, learned Advocate appearing for Srinivash Sharma, the petitioner in the first writ petition and Sri Manu Yadav, learned Advocate, appearing for Sunil Kumar, the petitioner in the second writ petition. Sri A.K. Malviya appeared for contesting respondent Rajendra Tewari in both the writ petitions and Sri R.K. Srivastava has been heard on behalf of Basic Shiksha Parishad and Basic Shiksha Adhikari.

A short counter affidavit has been filed on behalf of contesting respondent. Sri R.K. Srivastava, after obtaining instructions from Basic Shiksha Parishad and Basic Shiksha Adhikari has submitted the relevant Government Orders regulating the field.

The brief facts of the case for deciding both the writ petitions are that one Maheshwari Shukla, who was working as block Resources Coordinator in block Padarauna district Kushi Nagar, was to retire on 30.6.2007 after attaining the age of superannuation. No regular-selection for filling the post of Coordinator at Block Resources Centre having been held, it became necessary to post a porson or to give charge of the post of Coordinator at Block Resources Centre Padarauna district Kushi Nagar to an appropriate official. The Specialist Basic Shiksha Adhikari, Kushi Nagar vide order dated 29.6.2007 directed to give charge of Block Resources Coordinator, Hadrauna to Rajednra Tewari, the contesting respondent. The contesting respondent Rajendra Tewari was appointed as incharge, Block Resources Coordinator block Padarauna district Kushi Nagar. Both the writ petitions have been filed challenging the order dated 29.6.2007, giving charge of Block Resources Coordinator to Rajendra Tewari,

The case of petitioner Srinivash Sharma is that he was selected and appointed on the post of Coordinator of Nyay Panchayat Resources Centre in block Padarauna district Kushi Nagar vide order dated 20.3.2001 and he having been working as Coordinator Nyay Panchayat Resources Centre, was entitled to be given charge of Block Resources Coordinator being eligible for appointment on the post of Block Resources Coordinator.

The case of Sunil Kumar, the petitioner in the second writ petition is that he was appointed by order dated 28.11.2000 as Assistant Coordinator at Block Resources Centre, block Padarauna district Kushi Nagar and the post of Block Resources Coordinator having fallen vacant on 30.6.2007, it was he who was entitled to be given the charge of post of Block Resources Coordinator.

The contesting respondent Rajendra Tewari, who has been made incharge of Block Resources Coordinator, Padarauna district Kushi Nagar, had been working at the time of giving charge as. Incharge Urban Resources Centre, Padarauna. The contesting respondent, while working on his original post of Assistant Teacher, Prathamik Vidyalaya, Bhatavaliya, vide order dated 21.5.2005 was nominated as incharge of Coordinator Nagar Resources Centre, Padrauna. Learned Counsel for the petitioner challenging the posting of contesting respondent as Incharge of Block Resources Coordinator, Padarauna, contended that contesting respondent being working in Urban Resources Centre, Padarauna, which is a different entity than the Block Resources Coordinator, was not entitled to be given the charge of Block Resources Coordinator, Padarauna. It is contended by the petitioners that it were the petitioners, who were entitled to be given charge as per their claim as noted above.

Sri A.K. Malaviya, learned Counsel appearing for contesting respondent Rajendra Tewari contended that respondent No. 4 has earlier worked as Coordinator of Nyay Panchayat Resources Centre and is working as Incharge of Urban Resources Centre, was fully eligible and his claim was duly approved by the Principal of District Institute of Education and Training, Kushi Nagar on 8.6.2007, and he was rightly made the Incharge of Block Resources Coordinator, Padrauna.

I have considered the submissions and perused the record.

The issue raised in these two writ petitions is issue of entitlement of being appointed on the post of Block Resources Coordinator, which has fallen substantively vacant on 30.6.2007 and as to who amongst the three claimants was entitled to be given charge of Block Resources Coordinator, Padarauna.

The State Government vide Government Order dated 1.9.2001 provided the procedure and manner of selection on the post of Coordinator Block Resources Centre, Assistant Block Resources Coordinator, Nyay Panchayat Resources Coordinator in the districts where U.P. Basic Shiksha Pariyojana 1 and 2 and District Primary Education Programme 2 and 3 were running. The essential qualifications for the above posts and the persons who were eligible for appointment on the aforesaid posts was provided therein in the Government Order. In view of the fact that issue is with regard to posting/giving the charge on the post of Block Resources Coordinator, it is necessary to note the relevant qualifications and eligibility for the post.

------------------------------------------------------------------------------- Post Eligibility -------------------------------------------------------------------------------- B.R.C. Coordinator The post B.R.C. Coordinator shall be of the grade of Headmaster Uchch Prathamik Vidyalay. For this post, Head Master of Prathamik Vidyalaya or Assistant Teacher, Uchch Prathamik Vidyalaya or Coordinator N.P.R.C. having atleast two years experience is compulsory, but the total service period shall not be less ten years.

B.R.C. Assistant The post of Assistant Coordinator B.R.C. Coordinators hall be of the grade of Head Master of a Primary School and those Assistant Teachers of Primary Schools, who have atleast four years teaching experience, shall be eligible.

N.P.R.C. Coordinator The post of N.P.R.C. Coordinator shall be of the grade of Head Master of Primary School. For this post, Headmaster of Primary School or Assistant Teacher, Uchch Prathamik Vidyalaya, whose total service in the Board''s School is atleast of eight years, will be eligible. --------------------------------------------------------------------------------

From the eligibility criteria for appointment on the post of Coordinator Block Resources Centre, as provided by the Government Order, it is clear that a person who is eligible for appointment on the said post can be treated to be person suited for giving charge of the post of Block Resources Coordinator. It is further relevant to note that the resources centres in the rural areas are at two levels i.e. Block Resources Centre and Nyay Panchayat Resources Centre. For the Urban areas, there is another resources Centre namely urban resources centre.

Learned Counsel for the parties are at agreement that Government Orders issued from time to time by the State Government with regard to appointment on the post of Coordinator Block Resources Centre do not provide any methodology for appointment in stop gap arrangement or giving any entitlement of a person for giving charge on the post of Coordinator, Block Resources Centre. There being no guidelines for giving charge to an eligible person in stop gap arrangement, the entitlement and eligibility has to be carved out from the Government Orders regulating the appointment for the post. It cannot be disputed that a person having eligibility for appointment on a post, can be appointed in stop gap arrangement. Thus, the first principle which has to be kept in mind, while deciding the issue of giving charge to a person on the post of Coordinator Block Resources Centre is, that a person should possess eligibility for appointment on the post on which he is sought to be given charge. Thus, a person who is eligible for regular appointment on the post of Coordinator Block Resources Centre, is a person who can be given charge in stop gap arrangement pending regular selection. Thus, it is held that normally charge of the post of Coordinator Block Resources Centre has to be given to a person who possess the eligibility for appointment on the said post. A person who does not possess eligibility for the post, cannot be held to be a person suited for holding the charge even in stop gap arrangement.

Thus, the claim of both the petitioners and contesting respondent has to be looked into in view of the above.

First the claim of contesting respondent Rajendra Tewari is required to be decided according to the relevant Government Order. Along with short counter affidavit filed by the contesting respondent, copy of the order dated 21.5.2005 has been field as Annexure-C.A. 1, from which it is clear that contesting respondent was working as Assistant Teacher in Pury Madhyamik Vidyalaya and while working on the said post, he was given additional charge of Urban Resources Centre. The order further indicates that contesting respondent was not to be given any additional, salary or facility for working as Incharge of Urban Resources Centre. Thus, the nature of assignment of contesting respondent was only temporary alongwith his post of Assistant Teacher in Purv Madhyamik Vidylaya. The respondent No. 4 was not appointed on any post at the Urban, Resources Centre. The Government Order has specifically created post in the Urban Resources Centre, Nyay Panchayat Resources Centre and Block Resources Centre which are in addition to the district cadre. The contesting respondent was only made Incharge of Urban Resources Centre, while working as Assistant Teacher. The post which fell vacant was post of Block Resources Coordinator Padarauna and a person who is working in said block and is eligible for appointment has to be treated more suited for working on the post even on temporary basis till regular selection than the person who is not working in the block in question. Thus, the contesting respondent cannot be said to be entitled for being appointed as Coordinator of Block Resources Centre due to the above two reasons. Thus, the order giving, charge of the post of Bloc Resources Coordinator to contesting respondent cannot be sustained and is liable to be set aside.

Now remains the question as to amongst Srinavash Sharma and Sunil Kumar, who has better claim for the post in question. From perusal of the qualifications as provided in the Government Order dated 1.9.2001, it is apparent that Coordinator Nyay Panchayat Resources Centre having two years experience is eligible for appointment as Coordinator Block Resources Centre, which is one of the specific qualifications mentioned in the Government Order. The petitioner Sriramnivas had been appointed as Coordinator of Nyay Panchayat Resources Centre on 20.3.2001, fulfils his eligibility for appointment as Block Resources Coordinator. The qualification of Assistant Block Resources Coordinator is an Assistant Teacher of Prathamik Vidyalaya who has four years teaching experience. An Assistant Teacher of Prathamik Vidyalaya having four years experience is not eligible for appointment as Block Resources Coordinator according to the qualification prescribed in the Government Order. Thus, a person working as Assistant Coordinator in Block Resources Centre, by working on the said post alone is not eligible for appointment as Block Resources Coordinator. The petitioner is Assistant Teacher in primary school as stated in paragraph 6 of the writ petition by virtue if which he was appointed as Assistant Coordinator Block Resources Contre. The teacher working in Uchchia Prathamik Vidyalaya is only eligible for appointment as Coordinator Block Resources Centre.

In view of the above discussions, the Coordinator Nyay Panchayat Resources Centre, who is eligible for the post, has a better claim of being given charge on the post in question as compared to Assistant Block Resources Coordinator.

The above observations are however, subject to exceptions, which may be necessitated by exigency of service. For instance, in a case where in a block, there is no qualified and eligible Coordinator Nyay Panchayat Resources Centre, person eligible even from other blocks can be asked to hold the post, an Assistant Coordinator Block Resources Centre, who has qualification for appointment as Coordinator, Block Resources Centre can also be given charge. It is not unknown in the service jurisprudence that an officer is even asked to hold the charge of more than two posts, if necessary but in [he present case, it is to be noted that posting of contesting respondent is on the post of Coordinator Block Resources Centre and he has to discharge all the functions of Coordinator Block Resources Centre as mentioned in. the impugned order and it is not the case of discharging duties in addition to normal duties of contesting respondent.

In view of the foregoing discussions, the order dated 29.6.2007, passed by Specialist Basic Shiksha Adhikari cannot be sustained and is hereby set aside. In view of the setting aside of the order dated 29.6.2007, the Specialist Basic Shiksha Adhikari, Kushi Nagar may pass a fresh order with, regard to posting on the post of Coordinator Block Resources Centre till a regular selection is made keeping in view the observations made herein above.

Both the writ petitions are disposed of accordingly.