1

RESERVED

(AFR)

Case :- WRIT - A No. - 26189 of 2012

Petitioner :- Km. Sandhya Singh And Others

Respondent :- State Of U.P.Thru. Secy. And Others

Counsel for Petitioner :- Babu Nandan Singh

Counsel for Respondent :- C.S.C.,C.S.Singh,K.S.Shukla

Hon'ble Vineet Saran,J.

Hon'ble Prakash Krishna,J.

Hon'ble Sanjay Misra,J.

(Delivered by Prakash Krishna, J.)

Finding two conflicting decisions given by two division benches of

this Court, a learned Single Judge, by the order dated 25th of May,

2012 has referred the following two questions of law for consideration

to a larger bench. That is how the matter has come up before us on the

nomination made by Hon'ble the Chief Justice. Following two questions

have been referred:

(A) Whether mere selection on a date prior to 02.06.2010 will

confer a right upon the incumbent to claim appointment and for being

sent for training as Shiksha Mitra even after the State Government has

imposed a ban on such appointment on 02.06.2010 and the scheme of

Shiksha Mitra itself has been dropped by the State Government.

(B) Whether the law laid down by the Division Bench in the case

of Sonika Verma vs. State of U.P. and others (supra) or the law laid

down by the Division Benches in the case of Km. Rekha Singh vs.

State of U.P. and others (supra) and in the case of Pankaj Kumar vs.

State of U.P. and others (supra) is the correct law.

The background facts, as set out in the writ petition, relevant to

the above questions may be noticed in brief.

The present petition has been filed by five petitioners jointly by

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laying a claim to have been selected for the post of Shiksha Mitra in

the year 2009. The grievance is that the petitioners were neither

appointed as Shiksha Mitra nor were sent for training, notwithstanding

the said selection. The State Government, in the meantime, by the

government order dated 2nd of June, 2010 (the validity of which is not

in issue), imposed ban on further appointments of Shiksha Mitra. The

petitioners' claim that they are entitled for appointment as Shiksha Mitra

as the aforesaid government order dated 2nd of June, 2010 is

prospective in nature and does not prohibit the appointments of

Shiksha Mitra who were selected anterior to the said government

order. In support thereof, reliance has been placed by them on a

Division Bench decision of this Court delivered in Special Appeal

No.765 of 2011 : Smt. Sheela Yadav and others Vs. State of U.P.

and others on 9th of May, 2011 wherein the Division Bench held that

"The selection had been made for academic session 2009-2010

and the government order which was made on 2nd of June, 2010

was made for banning future appointments. The said government

order would, therefore, apply prospectively for the teachers'

selection from 2nd of June, 2010 onwards and would not apply

where appointments have been delayed on account of the

reasons which were relatable to the inaction of the respondents."

Reliance has also been placed on another Division Bench

decision of this Court in the case of Kumari Sonika Verma Vs. State

of U.P. and others, 2011 (1) ESC 681 wherein it was held that the

respondents therein could have only refused to make selection and

appointment after the date of ban i.e. 2nd of June, 2010.

According to the petitioners, in view of the authoritative

pronouncements by the aforesaid two Division Bench decisions, the

petitioners are entitled to be appointed as Shiksha Mitras, having been

selected prior to the date of ban.

The case of the respondents is as follows:-

An advertisement with a view to select 355 Shiksha Mitras was

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published in Hindi Newspaper dated 19.02.2009. Due to enforcement

of Model Code of Conduct, as the Lok Sabha Elections were notified,

the process of selection for the time being was stopped. Subsequently,

a notification dated 25th of September, 2009 was published which

provided 7th and 8th October, 2009 as the dates fixed for finalization of

selection at Tehsil level. On October 5, 2009 the Director of Education

(Basic) in the meeting decided to stop the process of selection and

necessary directions were given to every District Basic Shiksha Adhikari

of the State. In pursuance of the said directions the Basic Shiksha

Adhikari, Azamgarh notified that till further orders, the selection process

will be kept in abeyance. Ultimately, the State Government took a

decision to completely stop the fresh engagements of Shiksha Mitras

by the government order dated 2nd of June, 2010.

The respondents' further case is that from April 1, 2010 the Right

to Education Act, 2009 has been enforced. In the light of the said

enactment, the government took a policy decision not to engage any

fresh Shiksha Mitra, with the result the fresh engagement of Shiksha

Mitra has been done away.

The learned Single Judge has referred in the referring order

certain other decisions. They are (1) Special Appeal No.305 of 2008:

Sanjay Kumar Singh Vs. State of U.P. decided on 3rd of March,

2008; and (2) Special Appeal No. (276) of 2011: Kumari Rekha

Singh Vs. State of U.P. and others, decided on 18th of July, 2011.

In the case of Sanjay Kumar Singh, the Court held that the

appointment was to be made for academic year 2005-2006 in a village

of District Basti. The said period having been expired without making

appointment, there cannot be any appointment either of the petitioner

or of the respondent no.7 therein. It further directed the concerned

District Magistrate to start the procedure to appoint Shiksha Mitra in

that particular village forthwith for the academic year 2008-2009 and to

see that the selection and appointment of Shiksha Mitra is done well

before the academic year starts from July, 2008.

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In the case of Kumari Rekha Singh (supra) the Division Bench

held as follows:-

"The question for our consideration is whether the judgment of

the learned Single Judge suffers from any illegality. The post of

Shiksha Mitra was a tenure post for a particular period. However,

in the event, the services were found satisfactory, it could be

continued.

In the instant case, even before the petitioner-appellant could be

appointed and sent for training, on account of intervening

circumstance, the State took a stand that they are no longer

making appointment to the post of Shiksha Mitra in view of the

promulgation of the Right to Education Act, 2009.

The selection only gives a right to the selected candidate to be

considered. It is always open to the respondents to give

satisfactory reasons for not making appointment. In the instant

case, the respondents have given sufficient reason as to why the

appointment could not be made. That reason cannot be faulted,

namely that after promulgation of the Right to Education Act,

2009, they are no longer making any appointment to the post of

Shiksha Mitra.

Accordingly, we find no merit in the appeal. Hence, the appeal is

dismissed."

Having noticed the apparent two divergent views in the decisions

referred to herein above, it will be apt to take a note of relevant

government orders relied upon and referred by the counsel for the

parties, to find out the solution to the problem.

The first and the foremost government order on the subject is of

1st of July, 2000. The said government order was issued with an

avowed object of making eduction available at the grass-root level,

particularly to the children residing in villages. The State Government

felt that the standard teacher-taught ratio 1:40 be achieved in the village

schools. The idea was to develop a force and inspire educated persons

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residing in villages to provide community service by providing education

to such children. The preface of the said government order is relevant

to find out the aim and object behind the scheme known as "Shiksha

Mitra Yojna". The said paragraph is reproduced below:-

fo"k; %&izns'k esa izkFkfed f'k{kk ds lkoZHkkSfedj.k ds y{; dh vksj vxzlj gksus

ds fy;s f'kf{kr ;qokvksa dh lgHkkfxrk gsrq f'k{kk fe= ;kstuk dk dk;kZUo;u A

egksn;]

mi;qZDr fo"k; ij 'kklukns'k la[;k&2604@15&5&99&282@98] fnukad 26-05-1999 ,oa

'kk0 la0&4386@15&5&99&282@98 Vhlh] fnukad 11-08-1999 ds vuqØe esa eq>s ;g dgus dk

funsZ'k gqvk gS fd izns'k esa izkFkfed f'k{kk ds lkoZHkkSfed ds y{; dh vksj vxzlj gksus ds iz;klksa esa

LosPNk mudh lgHkkfxrk lkeqnkf;d lsok ds {ks= esa xzke iapk;rksa }kjk izkIr djus ds fy, f'k{kk

fe= ;kstuk dh jpuk dh gSA oLrqr% ;g ;kstuk eq[; :i ls xzkeh.k f'kf{kr ;qok 'kfDr dks vius

gh xzke esa f'k{kk ds vkyksd dks lkeqnkf;d lsok ds :i esa izTofyr djus gsrq mUgsa mRizsfjr djus

ds y{; dks n`f"Vxr j[krs gq, izkjEHk dh x;h gSA ;gka ;g Hkh Li"V :i ls bafxr dj fn;k tkuk

vko';d gS fd f'k{kk fe= ;kstuk lsok;kstu ijd ;kstuk ugha gS] izR;qr bldk mn~ns'; xzkeh.k

f'kf{kr ;qokvksa dks izkFkfed f'k{kk ds {ks= esa mudks lkeqnkf;d lsok gsrq mRizsfjr djuk ek= gSA

The other part of the scheme lays down the salient feature of

the scheme such as the manner of identification of Shiksha Mitras,

their tenure, qualification and procedure for their selection, payment of

honorarium and the duties of Shiksha Mitras. It would show that in a

college having regular teacher Shiksha Mitra will be appointed in the

ratio of 3:2 in respect of full time teachers and Shiksha Mitras.

Shiksha Mitras will be appointed only in such colleges where at least

one regular teacher is working. Firstly, the colleges where Shiksha

Mitras are to be appointed shall be identified by the District Level

Committee. Thereafter, the applications from the candidates will be

invited by public notice. The candidate should possess the minimum

qualification as prescribed in clause - IV of the government order. The

academic period of a session will be July to May.

The tenure of Shiksha Mitras will come to an end automatically in

every session on the last day of May. It further provides that the

persons who have been selected by Gram Panchayat and approved by

the District Samiti will be sent for one month's training and after

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completion of training the successful candidates shall be permitted to

work as Shiksha Mitra. Its clause-VII which may have some relevancy

is reproduced below:-

7-f'k{kk fe= dk izf'k{k.k%

xzke iapk;r }kjk p;fur ,oa ftyk lfefr }kjk vuqeksfnr f'k{kk fe= dks ftyk f'k{kk ,oa

izf'k{k.k laLFkku esa ,d ekg dk izf'k{k.k iznku fd;k tk;sxkA ;g izf'k{k.k f'k{kk fe= dks

lQyrkiwoZd izkIr djuk vfuok;Z gksxkA blds i'pkr~ gh xzke f'k{kk lfefr }kjk ikfjr

izLrkokuqlkj f'k{kk fe= dks f'k{kk dk;Z djus dh vuqefr iznku dh tk;sxhA bl izf'k{k.k vof/k ds

fy, mls :0 2250@& ds LFkku ij :0400@& dk ekuns; gksxkA

;fn f'k{kk fe= dks vxys f'k{kk l= ds fy;s p;u f'k{kk lfefr }kjk dj fy;k tkrk gS rks

mls vkxkeh l= esa 15 fnu dk iquZcks/kkRed izf'k{k.k lQyrkiwoZd izkIr djuk vfuok;Z gksxkA

iquZcks/kkRed izf'k{k.k vof/k esa mls :0 200@& dk ekuns; fn;k tk;sxkA

On May 2, 2006, the State Government provided that in case of

any complaint with regard to the proper selection of Shiksha Mitra, the

District Magistrate will examine the complaint and will ensure its

disposal in a transparent manner within a period of one month.

By the government order dated 12th of July, 2006 the scheme of

Shiksha Mitra, which was earlier confined to villages only, was

extended to urban population. Substantially, except consequential

changes such as with regard to the mode of the identification of

Shiksha Mitra, on similar lines the scheme provides that the working

period of Shiksha Mitra will come to an end automatically on the last

day of May of every academic session.

Now, comes the government order dated 2nd of June, 2010 not

impugned in the writ petition, banning the fresh appointments of

Shiksha Mitras with immediate effect. For the sake of convenience, the

relevant portion of the said government order is reproduced below:-

fo"k;% fu%'kqYd ,oa vfuok;Z f'k{kk dk vf/kdkj vf/kfu;e 2009 ds ifjizs{; esa f'k{kkfe=ksa dh uohu

fu;qfDr cUn fd;s tkus ds lEcU/k esaA

egksn;]

mijksDr fo"k;d vkids i= la[;k&f'k0fe0@614@2010&11] fnukad 06-05-2010 ds lanHkZ

esa eq>s ;g dgus dk funs'k gqvk gS fd fu%'kqYd ,oa vfuok;Z f'k{kk dk vf/kdkj vf/kfu;e 2009

fnukad 01-04-10 ls ykxw gks tkus ds ifjizs{; esa 'kklu }kjk lE;d~ fopkjksijkUr f'k{kk fe=ksa dh

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uohu fu;qfDr rRdky izHkko ls cUn fd;s tkus dk fu.kZ; fy;k x;k gSA d`i;k bl laca/k esa

vko';d dk;Zokgh djus dk d"V djsaA

A reading of the said government order would show that the State

Government, in view of the enforcement of Right to Education Act,

2009 w.e.f. 1st of April, 2010 decided to completely ban the fresh

appointments of Shiksha Mitras.

Heard Sri Babu Nandan Singh, learned counsel for the petitioner,

in support of the writ petition. Shri Ashok Khare, learned senior counsel

appearing in the connected matters as well as Shri A.P. Tewari, learned

counsel also advanced the arguments. The learned counsel for the

petitioners submitted that on a true and proper construction of the

government orders referred to herein above and in view of the decision

of this Court in the case of Sheela Yadav (supra) which stands

confirmed by the Apex Court in as much as the Special Leave Petition

filed by the State having been dismissed, the petitioners are entitled to

be appointed as Shiksha Mitras. Elaborating the argument, it was

submitted that the petitioners having been selected prior to 2nd of

June, 2010, on which date the ban on fresh appointments of Shiksha

Mitras was enforced, are entitled to be appointed as such. Elaborating

the argument, it was submitted that the scheme of Shiksha Mitras was

introduced from the academic session 1999-2000 in pursuance of the

policy decision notified by the government order dated 26th of May,

1999. The government decided that for the academic year 1999-2000

around 10,000 Shiksha Mitras will be engaged on contract basis and

for this purpose a Committee at District level was constituted which

consisted of the District Magistrate as its Chairman. Zila Panchayat

Raj Officer, Accounts Officer of Basic Shiksha Adhikari and Basic

Shiksha Adhikari as members. Consequent upon approval by the said

Committee intimation was required to be given to Gram Shiksha Samiti,

the selected candidate was required to undergo one month's training

and after successful completion of the training, could function as

Shiksha Mitra. The appointment was an engagement on contract,

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limited for academic session ending on the next 31st of May.

Subsequently, such appointments were made renewable on year to

year basis.

The learned Senior Counsel Shri Ashok Khare also referred to

other government orders to show that the contract of existing Shiksha

Mitras is made renewable automatically, except where there is some

complaint and the government is in process to accord them status of

assistant teachers. He has relied upon certain decisions to buttress his

arguments that change in norms of recruitment during the pendency of

selection process is not permissible under law. The submission is that

the government order dated 2nd of June, 2010 banning the fresh

appointments amounts to change in the norms of recruitment and as

such will not be applicable to the already selected candidates.

Refuting the above submission, Sri C.S. Singh, learned

Additional Chief Standing Counsel submits that the relied upon decision

in the case of Sheela Yadav though SLP has been dismissed, is not

correctly decided and the dismissal of the Special Leave Petition will

not come in the way of the State Government as the order dismissing

the SLP does not contain any reason. The other limb of the argument

is that the petitioners have no enforcible rights as (1) Mere Selection

does not confer any right on the selected candidate to claim

appointment as a matter of right, (2) The government orders are

executive instructions and if the State Government took a policy

decision, in view of the changed circumstances, has decided to stop

fresh selection/recruitment of Shiksha Mitras en-block, is not

justiciable issue, specially when the legality and validity of the said

government order dated 2nd of June, 2010 has not been questioned by

any petitioner.

The court was taken through the government orders referred to

herein-above with a view to establish that the purpose of Shiksha Mitra

scheme is not to provide employment. The government orders do not

create civil posts with a view to spread opportunity for education in the

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first stage in the rural and in the second stage in urban areas also. A

policy decision was taken to select Shiksha Mitras. The idea was to

maintain teacher-taught relation in the ratio of 1:40 by engaging

educated youths already residing in the villages. The said object is now

being achieved through the enforcement of Right to Education Act,

2009, which is a better way of spreading education. The State

Government has done no wrong by completely blocking the fresh

appointments of new Shiksha Mitras.

Shri K.S. Shukla, learned counsel appearing for the Basic Shiksha

Parishad adopted the arguments of Sri C.S. Singh.

Considered the respective submissions of the learned counsel for

the parties and perused the record.

Right to Education has been held to be a fundamental right. In

Mohani Jain Vs. State of Karnatka (1992) 3 SCC 666 the Apex Court

observed that the right to education flows directly from right to life. The

right to life under Article 21 and the dignity of an individual cannot be

assured unless it is accompanied by the Right to Education. The State

Government is under obligation to make an endeavour to provide

education facilities at all levels to its citizens.

Article 45 of the Constitution fixes a time limit during which a

State shall provide free compulsory education for children until they

complete the age of fourteen years. In the case of Election

Commission of India Vs. Saint Mary's School (2008) 2 SCC 390

(Para 26) the Apex Court observed that 60 years of Independence,

however, have not brought about the desired result of imparting

compulsory education to all the children. Education is one of the most

important functions of the State. The State has basic responsibility in

regard thereto.

Presumably, in view of the various judicial pronouncements of the

Apex Court pointing out the need of education for the good governance

of the country and upliftment of the poor and down trodden public

mostly residing in villages, the State Government took a step in this

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direction by deciding to evolve a scheme which came to be known as a

scheme of Shiksha Mitra Yojna. Its aim and object is self speaking and

has already been reproduced in the opening part of the judgment.

Upon hearing all the counsel for the parties, we are of the opinion

that the controversy on hand requires consideration of the following

points:-

1. When selection process of Shiksha Mitra is complete?

2. Whether such selected candidates can claim appointment as a

matter of right?

3. Indisputably, under executive instructions selected candidates were

permitted to work as Shiksha Mitra on payment of fixed monthly

amount called honorarium. In this view of the matter, still selected

candidates, to whom the appointment is not offered, can claim as a

right for appointment notwithstanding the ban order dated 2nd of June,

2010, the latter being not under scrutiny?

4. The effect of commencement of Right to Education Act, 2009?

5. Whether the apparent divergent views expressed by the different

Division Benches are reconcilable?

POINT NO.1.

The reference order presupposes that the petitioners are duly

selected candidates for Shiksha Mitra posts. Although when the

selection of Shiksha Mitras is complete, strictly speaking, is not within

the scope of the present reference but after hearing the counsel for the

parties, they were called upon to address us thereon. Along with the

writ petition, the petitioners could not enclose any document except the

copies of the proceedings of the Gaon Shiksha Samiti (Annexure-2)

(which is being disputed) that the petitioners are duly selected

candidates. The argument of the petitioners proceeded on the footing

that the petitioners' names were recommended by the Gram Shiksha

Samiti and as such, they stand selected, there being no disapproval to

the said resolution by the District Level Committee presided over by the

District Magistrate. The recommendations were made to the District

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Level Committee which remained pending for a considerable period of

time and in the meantime, the government order dated 2nd of June,

2010 came to be in existence. The learned Additional Chief Standing

Counsel submitted that till the successful completion of training, the

recommendees of the Gram Shiksha Samiti cannot be treated as duly

selected candidate.

We have given careful consideration to the respective

submissions of the learned counsel for the parties.

In pursuance of orders passed by us requiring the parties to file

counter and rejoinder affidavits, counter affidavit has been filed by Smt.

Pushpa Joshi posted as Professional Education For All Board on behalf

of Ministry of Basic Education, U.P. Lucknow-respondent no. 1 wherein

the background of Shiksha Mitra Scheme has been given in some

details. The history relates to the year 1986 under National Educational

Policy 1986. It was decided for universalization of elementary education

i.e. education upto class VIIIth. It was resolved, as para-5.12 of the

policy, to provide free and compulsory education of satisfactory quality

to all the children upto 14 years of age before start of 21

st

century. In

furtherance thereto in the year 1993, a project duly financed by the

World Bank was mooted for expansion of quality basic education in the

State. A society for smooth running of this project, namely, Uttar

Pradesh Sabhee Ke Liye Shiksha Pariyojna Parishad (U.P. Education

for all Project Board) was established on 17

th

May, 1993. Initially when

basic project was started in the year 1993, it had covered only 17

districts and the project was completed in 2000. The District Primary

Programme II was started in the year 1997 in 22 districts of the State of

U.P. which ended in the year 2003. Thereafter, programme III

rd

was

started in rest of 32 districts in the year 2000 and has ended on 31

st

March, 2006. The popularly known programme Sarva Shiksha was

started in the State in the year 2001-02 and now it covers all the

districts of the State. Sarva Shiksha Abhiyan intend to achieve the goal

of universal elementary education by creating a sustainable and

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decentralized educational management system and bringing the

community participation in all process of the programme. The scheme

of Shiksha Mitra came into existence in pursuance of Sarva Shiksha

Abhiyan. The State Government issued various government orders from

time to time. First government order is dated 26

th

May, 1999.

Government Order dated 26

th

May, 1999

Annexure-2 to the government order dated 26

th

May, 1999

contains the Shiksha Mitra Yojna. Its relevant clauses are reproduced

below:

**’kklukns’k la[;k 2604@15-5-99&282@98 fnukad 26 ebZ] 1999 dk layXud

f’k{kk fe= ;kstuk

izkFkfed f’k{kk ds lkoZHkkSfedj.k ds lanHkZ esa fu/kkZfjr ekud ds vuqlkj v/;kid Nk= vuqikr dks

cuk;s j[kus gsrq de ykxr ij f’k{k.k dh O;oLFkk ds fy;s f’k{kk fe= ;kstuk dh :ijs[kk fuEuor~

gSA ;g ;kstuk f’k{kk l= 1999&2000 ls ykxw gksxkA

1-f’k{kk fe= dh dYiuk-& LFkkuh; vko’;drk vkSj ekWax ds lanHkZ esa xzke lHkk Lrj ij

miyC/k b.VjehfM,V rd f’kf{kr O;fDr;ksa esa ls fu;e ekuns; ij iapk;r jkt vf/kfu;e ds

vUrxZr xfBr xzke iapk;r dh f’k{kk lfefr }kjk f’k{k.k dk;Z gsrq lafonk ij vkeaf=r fd;s tkus

okyk O;fDr ¼f’k{kk fe=½ gksxkA

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7-lafonk dh vof/k-& f’k{kk fe= xzke f’k{kk lfefr }kjk izLrko ikfjr dj pkyw 'kSf{kd l=

ds fy;s lafonk ij j[kk tk;sxkA tks ebZ ekg ds vfUre fnol dks Lor% lekIr gks tk;sxhA

8-lafonk vof/k dh ekuns;-& f’k{kk fe= dks lafonk ij :0 1450@& izfrekg fu;r ekuns;

ij j[kk tk;sxkA

9-lafonk lekIr djus dh izfØ;k-& ¼v½ fdlh Hkh f’k{kk fe= dk dk;Z larks"ktud u gksus dh

n’kk esa xzke f’k{kk lfefr ds nks frgkbZ cgqer ls fyf[kr izLrko ikfjr dj lafonk lekIr dj

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ldrh gSA xzke f’k{kk lfefr }kjk bl laca/k esa fd;k x;k fu.kZ; vfUre gksxkA

¼c½ lEcfU/kr f’k{kk fe= dks ml ekg dk ekuns; gksxk ftl ekg esa mlds fo:) xzke

f’k{kk lfefr }kjk lafonk lekIr djus ds vk’k; dk izLrko ikfjr dj fu.kZ; fy;k tk;sxk rFkk

bl izdkj gVk;s x;s f’k{kk fe= dks iqu% lsok dk volj iznku ugha fd;k tk;sxkA

10-f’k{kk fe= ds ekuns; dh Lohd`fr-& ¼v½ mi;qZDr vuqPNsn&6 esa fu/kkZfjr izfØ;k ds vuqlkj

xzke f’k{kk lfefr }kjk f’k{kk fe= dk p;u djus ds mijkUr ,rnFkZ vuqnku izkIr djus gsrq

vkSipkfjd izLrko fu/kkZfjr izk:i ij iw.kZ lwpukvksa lfgr lacaf/kr lgk;s csfld f’k{kk vf/kdkjh ds

ek/;e ls ftyk csfld f’k{kk vf/kdkjh dks miyC/k djk;k tk;sxkA ftyk csfld f’k{kk vf/kdkjh

visf{kr lR;kiu ,oa iqf"V ds mijkUr izLrkoksa ij 'kklu }kjk ukfer lfefr dk vuqeksnu izkIr

djsaxs ,oa vuqeksnu izkIr gksus ds mijkUr vuqnku dks Lohd`fr vFkok vLohd`fr dj fu.kZ; lacaf/kr

xzke f’k{kk lfefr dks lwfpr djsaxsA

¼c½ vuqnku Lohd`r fd;s tkus dh lwpuk izkIr gksus ij lacaf/kr xzke f’k{kk lfefr lacaf/kr

f’k{kk fe= dks bl vk’k; dh lwpuk nsxh fd og ftyk f’k{kk vkSj izf’k{k.k laLFkku esa izkjfEHkd

izf’k{k.k gsrq viuh mifLFkfr nsaA muds }kjk larks"ktud <ax ls ,d ekg dk izf’k{k.k iw.kZ dj fy;s

tkus ij fu/kkZfjr izkFkfed Ldwy esa f’k{kk fe= dks v/;kiu dk;Z gsrq ekuns; :01450@& izfrekg

ij lafonk ds vk/kkj ij fu;qDr fd;k tk;sxkA og lafonk vkxkeh 31 ebZ dks Lor% lekIr gks

tk;sxhA**

Government Order dated 1

st

July, 2000

Besides the other things, it contains format of application to be

filled up by the candidates who are desirous to work as Shiksha Mitra.

The relevant portion is reproduced below :-

**Izk:i&,d

f’k{kk fe= ds :i esa lkeqnkf;d lsok dk volj fn;s tkus gsrq vkosnu i= dk izk:i

lsok esa]

v/;{k]

xzke f’k{kk lfefr]

xzke iapk;r -------------------

ftyk -------------------------------

egksn;]

xzke iapk;r ------------------------------------------------------------------- }kjk izkFkfed f’k{kk ds lkoZHkkSfedj.k ds

ifjizs{; esa f’kf{kr ;qokvksa dh lkeqnkf;d lsok esa lgHkkfxrk ds fy, f’k{kk fe= ;kstuk ds vUrxZr

vkosnu djus gsrq fnukad ----------------- dks izlkfjr foKkiu ds lanHkZ esa eSa f’k{kk fe= ds :i esa

lkeqnkf;d lsok fd;s tkus gsrq viuk vkosnu&i= izLrqr djrk gwWaA**

It prescribes form no. 2, the format on which consent letter be

14

given by Shiksha Mitra. The relevant portion is reproduced below :-

**Izk:i&nks

f'k{kk fe= }kjk fn;s tkus okyk lgefr i=

eSa --------------------------------------------------------------------- vkRet@ifr ---------------------------------------------- xzke

---------------------------------------------- iapk;r lfefr ----------------------------------------- ftyk ------------------------------------ LosPNk ls

lektlsoh dh gSfl;r ls f’k{kk fe= ds :i esa dk;Z djus ds vk/kkj ij fuEufyf[kr ’krsZ Lohdkj

djrk@djrh gwWaA

1-eSa xzke ds fo|ky; esa ,d lekt lsoh dh gSfl;r ls f’k{k.k dk;Z d:axk@d:axhA eSa ,d

LosfPNd dk;ZdrkZ gwW ,oa vius vkidks jktdh;@ifj"knh; deZpkjh ugha le>waxk@le>waxhA eSa bl

lekt lsok ds fy, dksbZ osru ugha ywaxk@ywaxh] dsoy bl fufeRr fu;ekuqlkj ns; ekuns; gh

izfrekg izkIr d:axk@d:axhA**

One of the stands taken in the counter affidavit of the respondents

is that names of the petitioners were never recommended by the Village

Level Committee. Further stand is that admittedly no appointment letter

has been issued to any of them nor any information or communication

was sent by any of the respondents informing any of them that names

have been recommended to District Level Committee for Shiksha Mitra.

It was submitted that unless any communication has been sent to the

petitioners (even if any recommendation was made by Village Level

Committee), it will not confer any right on the petitioners to claim

appointment in view of decision of the Apex Court in the case of

Bachhitar Singh v. State of Punjab, AIR 1963 SC 395. We need not

address upon the above issues being beyond scope of reference. The

matter if occasion so arises may be examined by the writ court.

The modus operandi for identification of Shiksha Mitra as

mentioned in the government order is —

1.Gaon Shiksha Samiti invites applications from residents of

village for an academic session.

2.The Gaon Shiksha Samiti prepares a graded list according

to quality point marks mentioned in the guideline.

3.The name of person who stands at top is sent through the

Assistant Basic Shiksha Adhikari to the District Basic

Shiksha Adhikari who happens to be the ex-officio secretary

15

of the District Shiksha Samiti under Sarva Shiksha

Abhiyan.

4.Thereafter, all the matters are placed before the District

Shiksha Samiti headed by the District Magistrate as

President/Chairman.

5.In the case of any objection to the recommendations, the

District Magistrate decides the objections and then

prepares a list of Shiksha Mitras at District Level and sends

the same to the Principal District Institute of Education

Training (DIET).

6.The training is imparted to such candidates and after

successful completion of training, contractual appointment

is offered to them in the prescribed format.

True, the District Level Committee headed by the District

Magistrate cannot on its own accord, add any name in the list of the

candidates recommended by the Gram Shiksha Samiti, but it requires

approval in the sense that if there is any complaint with regard to any

irregularity committed by the Village Level Committee to look into it and

address it by passing an appropriate order. The argument of the

petitioners that there is no disapproval to the recommendations made

by the Village Committee is far stretched as admittedly, there is no

material before us to show that the recommendations made by the

Village Level Committee was ever forwarded or considered by the

District Level Committee. Had there been any consideration by the

District Level Committee favourably about the recommendations made

by the Gram Shiksha Samiti, the position might have been different. In

absence of any material to show the consideration of the

recommendations by the District Level Committee, the case of the

petitioners is on a wrong footing that they are selected candidates for

Shiksha Mitras.

In addition to above, one of the conditions is the successful

completion of the training. This is also indicative of the fact that the

16

selection process will last up to the successful completion of the

training and not before.

The upshot of the above discussion is that it is a misnomer to

call the petitioners as selected candidates. The selection process will

come to an end only when a person is asked to give his consent on the

prescribed proforma to enter into a contract to serve as Shiksha Mitra

and not earlier to it.

POINT NO.2.

Assuming for the sake of argument that the petitioners were

selected, the contention of the respondents is that in view of the

leading judgment of the Apex Court in the case of Shankersandash

Vs. Union of India (1991) 3 SCC 47 the petitioners have no right to

claim appointment/to work as Shiksha Mitra, even if a vacancy exists.

The relevant paragraph is paragraph no.7 which is reproduced below:-

"7. It is not correct to say that if a number of vacancies are notified

for appointment and adequate number of candidates are found fit,

the successful candidates acquire an indefeasible right to be

appointed which cannot be legitimately denied. Ordinarily the

notification merely amounts to an invitation to qualified candidates

to apply for recruitment and on their selection they do not acquire

any right to the post. Unless the relevant recruitment rules so

indicate, the State is under no legal duty to fill up all or any of the

vacancies. However, it does not mean that the State has the

licence of acting in an arbitrary manner. The decision not to fill up

the vacancies has to be taken bona fide for appropriate reasons.

And if the vacancies or any of them are filled up, the State is

bound to respect the comparative merit of the candidates, as

reflected at the recruitment test, and no discrimination can be

permitted. This correct position has been consistently followed by

this Court, and we do not find any discordant note in the decisions

in State of Haryana v. Subhash Chander Marwaha and Others,

[1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana

17

and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others

v. State of Punjab and Others, [1985] 1 SCR 899."

The aforesaid decision of the Apex Court has been followed and

referred in the following cases:-

1.AIR 2007 SCW 6899 (15,24).

2.AIR 2007 SCW 6967 (15,17).

3.AIR 2008 SCW 322 (30).

4.AIR 1993 SC 796 (10): Union Territory of Chandigarh Vs.

Dilbagh Singh and others.

5.AIR 1994 SC 736 (10): State of Bihar and others Vs.

Secretariat Assistant Successful Examinees Union 1986 &

Others.

6.AIR 1996 SC 1145 (5,8): State of Bihar & others Vs. Md.

Kalimuddin and others.

7.AIR 1996 SC 2340 (17):Union of India Vs. SS Uppal and

another.

8.AIR 1996 SC 3031 (6,8) : Union of India and others Vs. K.V.

Vijesh.

9. AIR 1997 SC 1803 (8) Dr. Ramulu and another etc. Vs.

Dr. S. Surya Prakash Rao and others.

10. AIR 1997 SC 1896 (2): N. Mohanan Vs. State of Kerala

and others.

11. AIR 1997 SC 3761 (12): Union of India and others Vs.

N.R. Banerjee and others.

12. AIR 1998 SC 3104 (9) : Rani Laxmibai Kshetriya Vs.

Chand Behari Kapoor and others.

13. AIR 1999 SC 849 (10): Dr. J. Shashidhara Prasad Vs.

Governor of Karnataka and another.

14. AIR 2000 SC 1898(22): Tamil Nadu Administrative

Service Officers Association and another Vs. Union of

India and others.

15. AIR 2001 SC 1851 (10): All India SC and ST

18

Employees Association and another etc. Vs. A. Arthur

Jeen and others etc.

16. AIR 2002 SC 1885 (12): Vinodan T and others Vs.

University of Calicut and others.

17. AIR 2003 SC 4062 (28): State of Uttranchal and others

Vs. Sidharth Srivastava and others.

18. AIR 2003 SC 4248(31): Baitarani Gramiya Bank Vs.

Pallab Kumar and others.

19. AIR 2003 SC 4588 (7): State of Orisa and others Vs.

Bhikari Charan Khuntia and others.

20. AIR 2004 SC 1724 (7): Bihar State Electricity Board Vs.

Suresh Prasad and others.

21. AIR 2004 SC 5061 (4): Punjab State Electricity Board

and others Vs. Malkiat Singh.

22. AIR 2005 SC 2540 (A12): Rajesh Kumar Gupta and

others Vs. State of U.P. and others.

23. AIR 2005 SC 2775 (A13): Food Corporation of India

and others Vs. Bhanu Lodh and others.

24. AIR 2006 SC 789 (A16): Union of India (U.O.I.) and

others Vs. Kalidass Batish and another.

25. AIR 2006 SC 3080 (20): State of U.P. and another Vs.

Om Prakash and others.

26. AIR 2007 SC (Supp.) 830 (8).

27. AIR 2008 SC 5 (16): Union of India and others Vs.

Vinod Kumar and others.

28. AIR 2008 SC 559 (9,12,17): Dir. SCTI for Med. Sci

and Tech & Anr. Vs. Pushkaran.

29. AIR 2008 SC 2760 (17): Subha B. Nair & Ors. Vs.

State of Kerala & ors.

In State of U.P. and others Vs. Raj Kumar Sharma and others

(Appeal (Civil) 1433 of 2006) decided on 3rd of March, 2006 the

Apex Court has laid down that the selectees cannot claim appointment

19

as a matter of right. Mere inclusion of candidate's name in the list

does not confer any right to be selected, even if some of the vacancies

remain unfilled, the concerned candidates cannot claim that they have

been given hostile discrimination. In the case on hand, the theory of

discrimination has not been put forward as it has not been set out

anywhere in the writ petition.

We, therefore, find that even if it is assumed what the petitioners

say that their names were recommended by the village level

committee, is correct, it does not confer upon them any enforceable

right to ask for a writ of mandamus.

POINT NOS.3, 4 & 5

It could not be disputed by the petitioners that the scheme for

appointment of Shiksha Mitra came into being through the government

orders i.e. executive instructions. To put it differently, the petitioners'

appointment/selection is contractual appointment as Shiksha Mitra.

Meaning thereby, there is no statutory backing to the petitioners' claim.

The petitioners' argument proceeds on the footing that the post of

Shiksha Mitra is a civil post and is governed by the Principle of

statutory service rules. The scheme itself provides that a person shall

be allowed to function as Shiksha Mitra under a contract for a fixed

period which will come to an end on 31st of May of the next year. No

honorarium shall be payable for the month of June. The scheme

shows that it will commence in the month of July of each year and will

end on 31st of May i.e. for eleven months. By modification it has been

provided that if nothing is there against a person he may continue as

Shiksha Mitra for the next academic session, subject to receiving a

short refresher training. All this cumulatively shows that the tenure of

Shiksha Mitra is a fixed term tenure, maximum up to the period of

eleven months which, of course, in view of the subsequent

amendments by the Government Order can be renewed for subsequent

academic sessions.

Having noticed the nature of working of Shiksha Mitra as

20

envisaged in the government orders, to which there appears to be no

quarrel by the petitioners, if the government has decided to discontinue

the scheme any further by the government order dated 2nd of June,

2010, the petitioners have hardly any right for the enforcement of which

a writ under Article 226 of the Constitution of India can be issued.

Right of Children to Free and Compulsory Education Act, 2009

was enacted in the year 2009 and it received the assent of the

President on 26th of August, 2009. The said Act has been enacted by

the Parliament to provide for free and compulsory education to all the

children of the age of six years to fourteen years. The National Council

for Teachers Training (NCTE) vide notification dated 23rd of August,

2010 has notified that apart from minimum qualification prescribed,

every candidate is supposed to clear the TET examination. In

pursuance thereof on 22nd of April, 2010, the Additional State Project

Director circulated a letter that if any selection process has started for

engagement of Shiksha Mitra, the same may be stopped immediately.

The Secretary of Education has also issued a communication under

the aforesaid Act, 2009 to all the District Magistrates which is dated

2nd of June, 2010. In view of the change scenario, the government

order dated 2nd of June, 2010 is a policy decision of the State

Government. Time and again, it has been laid down that in policy

decision matters, interference by the Court should be minimal, moreso,

in the present case when the government order dated 2nd of June,

2010 is not questioned by any of the petitioners. At this stage, we

cannot resist our temptation to reproduce the observation of the

Division bench headed by Hon'ble Justice H.L. Gokhale,C.J. (as He

then was), and one of us (Justice Vineet Saran) was a member.

"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 honorarium to the concerned teacher. The appointment

comes to an end at the end of the academic year, with right to continue

if the performance is good."

21

We have borrowed the above observations from the case of

Sanjay Kumar Singh (supra) which contains the philosophy with regard

to the Shiksha Mitra's scheme, in condensed form.

The main plank of the petitioners' argument that the G.O. dated

2nd of June, 2010 is prospective as held in the case of Sheela Yadav

(supra) by Division Bench and the ban will not apply to such candidates

who were selected successfully prior to the date of the ban, needs

consideration. It is a short judgment. The following two paragraphs

were relied upon by the members at Bar":-

"However, the admitted position is that the selection had been

made for the academic session 2009-10 and the Government Order

which was made on 2.6.2010 was made for banning future

appointments. The said G.O. would therefore apply prospectively for

the teachers selection from 2.6.2010 onwards and would not apply

where the appointment had been delayed on account of reasons which

were relatable to the inaction of the respondents.

Learned counsel for the appellant has also referred to a Division

Bench decision of this Court in the case of Km. Sonika Verma versus

State of U.P. and others, reported in 2011(1) ESC 681 (All) (DB)

wherein this Court has considered a case of similar facts and

circumstances and has come to the conclusion that the respondents

could have only refused to make selection and appointment after the

date of ban i.e. 2.6.2010 and since the case in hand is relatable to the

selection made prior to the enforcement of ban by the G.O. dated

2.6.2010, the case of the appellant would not be covered by the said

G.O."

Indisputably, the Special Leave Petition filed against the aforesaid

judgment has been dismissed summarily by the Apex Court. The

Bench in the case of Sheela Yadav has relied upon a Division Bench

judgment in the case of Kumari Sonika Verma (supra).

Therefore, the factual matrix of the case of Sonika Verma and

the precise controversy involved therein needs consideration. In the

22

case of Sonika Verma the appellants therein along with twenty two

candidates who had applied against the advertised vacancies in

respect of urban area, were selected. The appointment letters were

offered to the twenty two selected candidates and other joined their

duties on 17th of April, 2010. The candidature of the appellant (Sonika

Verma) was placed in the category of 'disputed' by the Assistant Basic

Shikshadhikari. It was found that Sonika Verma was placed under the

said category for no fault on her part. Later on, she was informed that

in view of the government order dated 2nd of June, 2010 no

appointment can be offered to her. In this factual scenario the High

Court considered the case of Sonika Verma and held that it is a case

of discrimination vis a vis Sonika Verma. The word 'disputed' was

subsequently found by the respondents themselves as noticed in the

judgment as incorrect. In such situation, the Court ruled that

"to non suit the appellant would be to deny the opportunity of

employment to her on an erroneous assumption. The appellant

was entitled to be offered appointment along with other selected

candidates and there was no occasion to treat her selection to be

disputed. This being the factual position in the present case, in

our opinion, the respondents have erroneously applied the

government order dated 2nd of June, 2010, which cannot be

pressed into service on the facts of the present case. The

respondents can refuse to make selection and appointment after

2nd of June, 2010 if the policy can be held to be justiciable with

which we are not presently concerned. The present case is in

relation to a selection and appointment prior to the enforcement of

the said government order and therefore, as indicated above, the

same would not be governed by the same."

A meaningful reading of the above quoted paragraph would lead

us to the conclusion that the case was decided principally on the ground

that the name of the petitioner was wrongly placed in the case of

'disputed' for no fault of the appellant therein, which is not the case

23

here. The question of prospective application of the government order

dated 2nd of June, 2010 was not involved even remotely. This aspect

of the case was not brought to the notice of the Division Bench deciding

the case of Sheela Yadav.

A bare perusal of the judgment in the case of Sheela Yadav

would reveal that attention of the Court was not invited towards the fact

that in the Shiksha Mitra Scheme itself it is mentioned that it is not a job

oriented scheme. The facts that the appointment of Shiksha Mitra is

only for eleven months in a year and it comes to an end automatically

on 31st of May of the next year and that Shiksha Mitra Scheme is to

serve the society through local youths and in lieu of the same

honorarium is provided escaped the attention of the Court while

deciding the aforesaid case. All these factors were considered by the

other Division Benches taking a different view of the matter. In our

considered view, the judgments in the cases of Sheela Yadav and Km.

Sonika Verma having rendered de hors the Shiksha Mitra Scheme, do

not lay down correct law, there is no analysis of the Shiksha Mitra

Scheme.

Even otherwise also, there is no question of prospectivity or

retrospectivity of the government order dated 2nd of June, 2010. Every

government order, unless it provides otherwise, talks prospectively. The

same view has been taken in the case of Sheela Yadav (supra). Ban is

being imposed so far as it relates to fresh appointments of Shiksha

Mitras. The day on which the G.O. dated 2nd of June, 2010 came into,

no status of Shiksha Mitras was conferred on the petitioners as

admittedly none of them had undergone successful training to become

a Shiksha Mitra. Thus, from any angle, we fail to understand as to

how the judgment in the case of Sheela Yadav (supra) supports the

petitioners' case, the dismissal of SLP notwithstanding.

We may now consider the precedents relied upon by Sri Ashok

Khare, learned Senior Counsel for the petitioners. Reference was made

to A.A. Calton v. Director of Education and another, (1983) 3 SCC

24

33 wherein it has been laid down that the legislature may pass laws

with retrospective effect subject to the recognized constitutional

limitations, but no retrospective effect should be given to any statutory

provisions so as to impair or take away an existing right, unless that

statute either expressly or by necessary implication directs that it should

have such retrospective effect.

In the case of Dr. Ramji Dwivedi v. State of Uttar Pradesh and

others, (1983) 3 SCC 52, (para-13 in particular) the power to

appointment Principal was taken away by the State Government by

issuing the order dated 1

st

April, 1981. The appellant was appointed

thereafter by Committee of Management as Principal of the college. The

dispute arose with regard to validity of appointment of Principal

appointed on 1

st

May, 1981 i.e. after the State Government order dated

1

st

April, 1981 stopping all fresh selections and appointments. The

matter travelled to the Apex Court, which found that the appointment of

the appellant (Principal) by the Committee of Management was not

valid. This case, therefore, if at all applicable to the facts of present

case, runs to the counter of the petitioners’ case and supports the stand

of the respondents.

Next, reliance was placed on P. Mahendran and others v. State

of Karnataka and others, (1990) 1 SCC 411, wherein it was held that if

the qualification for appointment has been changed subsequently, the

select list prepared on the basis of the then existing qualification is

valid. The case has been decided on the ground that every statute or

statutory rule is prospective unless it is expressly or by necessary

implication made to have retrospective effect. This case also does not

support the case of the petitioners. The observations made therein were

made in different statutory set up. It is distinguishable and has no

application for the simple reason that here is not a case where there is

change in the qualification of a post. To the same effect is N.T. Devin

Katti and others v. Karnataka Public Service Commission and

others, (1990) 3 SCC 157.

25

Lastly, State of Bihar and others v. Mithilesh Kumar, (2010) 13

SCC 467, was pressed into service. A meaningful reading of the same

would show that it is distinguishable on facts and has no application to

the case on hands even remotely. In the case of Mithilesh Kumar

(supra), Mithilesh Kumar was declared successful in the interview which

was held on 9

th

November, 2002. Before that, by the letter dated 14

th

November, 2002, a request was made to Bihar Public Service

Commission not to send any further recommendation as scheme for

appointment of disabled person for vocational training is not valid. In

this case, reference of Constitution Bench decision of Apex Court in

Shankarsan Dash v. Union of India, (1991) 3 SCC 47 has been

made. Without making any comment on the said judgment, the Apex

Court has distinguished the judgment given in All India Railway

Recruitment Board v. K. Shyam Kumar, (2010) 6 SCC 614 on the

ground that there, the candidate was not considered as there was a

change in policy regarding recruitment in the meantime. For the sake of

convenience, paras 22 & 23 are reproduced below:-

22.There is no reason for us to have any

disagreement with the decision of this Court in All

India Railway Recruitment Board case (supra)

regarding the right to appointment even of selected

candidates, but this is not a case of the Respondent

having acquired any indefeasible right which has to

be cancelled on account of certain exigencies. On the

other hand, this is a case where although selected for

the purpose of appointment by the B.P.S.C., Patna,

the case of the Respondent was not even considered

as there was a change in policy regarding recruitment

in the meantime.

23.While a person may not acquire an indefeasible

right to appointment merely on the basis of selection,

26

in the instant case the fact situation is different since

the claim of the Respondent to be appointed had

been negated by a change in policy after the selection

process had begun.

The above quoted paragraphs would show that if the change in

policy regarding recruitment takes place before consideration of the

candidature on merit, then the case would be covered by the judgment

of the Apex Court in All India Railway Recruitment Board (supra) but if

the change in policy takes place after the selection process has begun,

fate of the selected candidates would be different. The facts of the case

on hands are more close to the facts of the case in All India Railway

Recruitment Board (supra) than in the case of Mithilesh Kumar (supra).

We are saying so as in the case of Mithilesh Kumar, it is apparent from

para-4 of the report that Mithilesh Kumar was declared successful. It

has been pointed out in earlier part of the judgment that the petitioners

have not placed any material before us to show that they have been

declared successful by any authority or respondent so far.

Sri C.S. Singh, learned Additional Chief Standing Counsel has

placed strong reliance on State of Gujrat v. Mirzapur Moti Kureshi

Kassab Jamat and others: AIR 2006 SC 212, for the proposition that

principle of stare decisis does not prohibit a fresh look in changed facts

and circumstances. Relevant paras 114, 120 and 176, for the sake of

convenience, are reproduced below:-

“114. The trend of judicial opinion, in our view, is

that stare decisis is not a dogmatic rule allergic to

logic and reason; it is a flexible principle of law

operating in the province of precedents providing

room to collaborate with the demands of changing

times dictated by social needs, State policy and

judicial conscience.

x x x x x x x x

x x x x x x x x

27

120.The doctrine of stare decisis is generally to be

adhered to, because well settled principles of law

founded on a series of authoritative

pronouncements ought to be followed. Yet, the

demands of the changed facts and circumstances

dictated by forceful factors supported by logic,

amply justify the need for a fresh look.

x x x x x x x x

x x x x x x x x

176.In this connection, it will be relevant to refer

the principle of stare decisis. The expression of '

stare decisis' is a Latin phrase which means “to

stand by decided cases; to uphold precedents; to

maintain former adjudications”. It is true that law is a

dynamic concept and it should change with the time.

But at the same time it shall not be so fickle that it

changes with change of guard. If the ground

realities have not changed and it has not become

irrelevant with the time then it should not be

reviewed lightly. I have discussed above the

reasons which have been given by the State of

Gujarat for reconsideration of the earlier decisions

on the subject, in my humble opinion the justification

so pleaded is not sufficient to change or review the

decision of the Constitution Bench by the present

Bench of seven Judges.”

Reference was made to State of Madhya Pradesh v. Narmada

Bachao Andolan and another, (2011) 7 SCC 639, with regard to per

incuriam doctrine. Relevant paras 65, 66 and 67 are reproduced

below :-

“Per incuriam doctrine

65.“Incuria” literally means “carelessness”. In

28

practice per incuriam is taken to mean per ignoratium.

The Courts have developed this principle in relaxation of

the rule of stare decisis. Thus, the “quotable in law” is

avoided and ignored if it is rendered, in ignorance of a

statute or other binding authority.

66.While dealing with observations made by a

seven-Judge Bench in India Cement Ltd. v. State of Tamil

Nadu, (1990) 1 SCC 12 : AIR 1990 SC 85, the five-Judge

Bench in State of West Bengal v. Kesoram Industries

Ltd., (2004) 10 SCC 201, observed as under:-

“57. …. A doubtful expression occurring in a

judgment, apparently by mistake or inadvertence, ought to

be read by assuming that the Court had intended to say

only that which is correct according to the settled position

of law, and the apparent error should be ignored, far from

making any capital out of it, giving way to the correct

expression which ought to be implied or necessarily read in

the context, …..

* * *

71.…. A statement caused by an apparent

typographical or inadvertent error in a judgment of the

Court should not be misunderstood as declaration of such

law by the Court.

(emphasis added)

(See also Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2

SCC 232 : AIR 1975 SC 907, A.R. Antulay v. R.S. Nayak,

(1988) 2 SCC 602 : AIR 1988 SC 1531. State of U.P. v.

Synthetics and Chemicals Ltd., (1991) 4 SCC 139; and

Siddharam Satlingappa Mhetre v. State of Maharashtra,

(2011) 1 SCC 694.)

67. Thus, “per incuriam” are those decisions given

in ignorance or forgetfulness of some statutory provision

29

or authority binding on the Court concerned, or a

statement of law caused by inadvertence or conclusion

that has been arrived at without application of mind or

proceeded without any reason so that in such a case

some part of the decision or some step in the reasoning

on which it is based, is found, on that account to be

demonstrably wrong.”

Submission is that the judgment given in the case of Sheela

Yadav (supra) should be ignored as the attention of the Court was not

invited towards various clauses of Shiksha Mitra Policy and towards

binding precedent of the earlier decision of this Court. We find sufficient

force in the above submission.

The Additional Chief Standing Counsel also referred a Full Bench

Judgement of this Court delivered in Civil Misc. Writ Petition

No.12908 of 2013: Shiv Kumar Sharma Vs. State of U.P. and

others delivered on 31st of May, 2013 to buttress his argument. In this

Full Bench judgement the High Court has held that it is essential to a

teacher to possess Teacher Eligibility Test qualification which was

introduced subsequently after the selection. Elaborating the argument,

the learned Additional Chief Standing Counsel submitted that it does not

amount to changing the rules of game by making variation in the

qualification.

The learned counsel also placed reliance upon another Full Bench

judgement in the case of Arun Kumar Singh and others Versus

State of U.P. and others: Writ - A No. 20740 of 2012 delivered on

20.12.2012 wherein doctrine of per incuriam has been elaborately

dealt with.

Reliance was also placed by him on Black's Law Dictionary on

the meaning of word "approve", reproduced below:

"approve, vb. 1. To give formal sanction to; to confirm

authoritatively. 2. Parliamentary law. To adopt. See ADOPTION (5). —

approval, n."

30

The consistent view of this Court appears to be, as held by this

Court in the case of Sanjay Kumar Singh (supra) and Km. Rekha Singh

(supra), that the selection only gives right to the selected candidates to

be considered. It is always open to the respondents to give satisfactory

reason for not making appointment. The reasons given by the

respondents for not making appointment to the post of Shiksha Mitra in

view of the promulgation of Right to Education Act, 2009 has been

found to be justified, with which we also express our acceptance. More

or less, similar view has been taken by another Division bench in

Special Appeal No.(373) of 2011: Pankaj Kumar Vs. State of U.P.

decided on 13th of May, 2011.

Viewed as above, we do not find any divergence in the views of

Division Benches referred to herein above. The decision in the case of

Kumari Sonika Verma was rendered on its peculiar fact i.e.

discrimination vis a vis other duly selected candidates to whom

appointments were offered but it was denied to Sonika Verma for no

fault of her. In the case of Smt. Sheela Yadav (supra) the decision

given in the case of Sonika Verma was followed. It appears that peculiar

facts of the case of Sonika Verma were not brought to the knowledge

of the Bench. In addition to the above, the observation made in the

case of Sheela Yadav that the ban imposed by the G.O. dated 2nd of

June, 2010 is prospective should be read in the context of the facts of

that case.

The following order was passed by the Apex Court in the SLP:-

"Delay condoned.

The Special Leave Petition is dismissed on merits."

We do not want to burden this judgment with the various citations

referred by the learned counsel for the parties on the point that the

judgment of this Court in the case of Sheela Yadav stands confirmed by

the Apex Court or not.

With regard to question (A), in view of the above discussion, we

are of the opinion that the petitioners were not duly selected and even if

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they were selected, the selection will not confer a right upon them to

claim appointment and for being sent for training as Shiksha Mitras in

view of the ban imposed by the State Government by the GO dated 2nd

of June, 2010. In other words, persons whose names even if

recommended prior to 2.6.2010, will not acquire any right to claim a

direction for appointment as Shiksha Mitra.

The question (B) is answered by holding that the case of Sonika

Verma was decided on its peculiar facts and therefore, it will have no

general application. The law laid down in the cases of Km. Rekha

Singh and Pankaj Kumar are correct enunciation of law and we

express our concurrence with them.

Let the matter be placed before learned Single Judge with our

above opinion.

(Sanjay Misra, J.) (Prakash Krishna, J.) (Vineet Saran, J.)

Order Date :- 08.08.2013

LBY