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Ved Prakash v. State Of U.P. And Others - WRIT - A No. 23399 of 2007  RD-AH 9480 (17 May 2007)
Court No. 39
Civil Misc. Writ Petition No. 23399 of 2007
State of U.P. and others
Hon'ble V.K. Shukla, J.
Present writ petition has been filed for quashing of order dated 15.12.2006 passed by District Magistrate, Hamirpur, rejecting the representation of petitioner on the ground that under the Government Order dated 10.10.2005, relatives of the Chairman and Secretary of Gram Shiksha Samiti are prohibited from being appointed as Shikshamitra, and for declaring provisions of prohibition on appointment of relatives of Gram Pradhan, Chairman of Shiksha Samiti as ultra vires.
Brief background of the case is that the father of petitioner was elected as Pradhan of Gram Panchayat Klaulijar, District Hamirpur, and when proceedings for selection and appointment of Shikshamitra took place, petitioner also offered his candidature for the said post. His candidature was not recommended, in this background, he preferred writ petition No.22668 of 2006, whereupon, District Magistrate was asked to look into the grievance of petitioner and take appropriate decision. Thereafter, the District Magistrate took up the matter and rejected the claim of petitioner on the ground that he happened to be the son of the Gram Pradhan of the concerned Gram Panchayat, whose appointment is prohibited under the relevant policy dated 10.10.2005. At this juncture present writ petition has been filed, contending that the action of respondents, imposing prohibition, with regard to relatives of Secretary and Chairman of Gram Shiksha Samiti, is unconstitutional and unreasonable and violative of provisions of Articles 14 and 16 of the Constitution of India, as such the condition imposed in Government Orders dated 01.07.2005 and 10.10.2005 is liable to be quashed.
Sri P.N. Ojha, learned counsel for petitioner, contended with vehemence that imposition of restriction is totally arbitrary and unreasonable and by imposing such restriction, no object, whatsoever, is sought to be achieved, and on the other hand, right to be considered is infringed on account of said illegal restriction, as such writ petition deserves to be allowed.
From the side of respondents, learned Standing Counsel, on the other hand, contended that once policy decision has been taken by the the State Government that relatives of Chairman and Secretary of Gram Shiksha Samiti will not be appointed on the post of Shikshamitra, no infirmity can be pointed out in the same.
After respective arguments have been advanced, the relevant Government Order, which covers the field has been perused. It is evident that scheme of Sarva Shiksha Abhiyan has been enforced in the State of U.P. and qua the same in order to have active participation of youths qua the same, policy to appoint Shikshamitra has been formulated. The said scheme is clear and categorical that it is not an employment oriented scheme and its aim and endeavour is to inculcate in dedicated youths to come forward in community service. For making selection and appointment, posts of Shikshamitra have to be identified and thereafter, Gram Shiksha Samiti is to make arrangement in respect of appointments of Shikshamitra and for that purpose a full fledged procedure has been provided for, as to how and in what way and manner appointments are to be made. Under the said scheme it has been provided that relatives of Secretary and Chairman of Gram Shiksha Samiti are prohibited to be appointed as Shikshamitra, and therein it has also been provided that as to how the said Shikshamitra has to function, including the matter of their renewal.
The Governor , in exercise of power vested under Section 29 of U.P. Panchayat Raj Act, 1947, on 29.07.1999 mandated every Gram Panchayat, for constitution of Committees and for entrustment of work to be deputed to such Committees. As per the same Shiksha Samiti was to be constituted, wherein Deputy Pradhan was to be the Chairman, and the duties of said Shiksha Samiti was to look after primary Education, Higher Primary Education, Anaupcharik Education, works related with literacy. Constitution of said Committee, was provided for with Deputy Pradhan as Chairman, six members (out of which one each from SC/ST/OBC was necessary); Head Master; Three Guardians with Gram Panchayat Vikas Adhikari as Sachiv. Thereafter under U.P. Basic Education Act, 1972, Section 9-A was inserted by U.P. Ordinance No. 4 of 2000, and as per the same, every teacher serving in basic school, the Board was brought under the control of Gram Panchayat or Municipality, as the case may be, under whose jurisdiction, institution in question was situated, and similarly all buildings, properties and assets also stood transferred from Board to Gram Panchayat and Municipality respectively . Sections 10, 10-A and 11 were substituted by U.P. Ordinance No. 4 of 2000, dated 11.02.2000, and Section 11 specifically covered the field of constitution of Gram Shiksa Samiti, with Pradhan of Gram Panchayat as Chairman, Three Guardians of students of basic school (of whom one guardian has to be women) to be nominated by Assistant District Basic Education Officer; Head Master of the Basic School, situated in Gram Panchayat as its Secretary, and if there are more than one school, then senior most of these Head Masters, and further the functions of Gram Shiksa Samiti. Under the UTTAR PRADESH PANCHAYAT RAJ (GRAM PANCHAYAT KE SAMITIYON KA APNE KRITYON KE SAMPADAN ME SAHAYATA KE LIE SANGHATAN) NIYAMALWALI, 2002 promulgated on 13.09.2002, it has been provided that Up Pradhan shall be the Chairman of Shiksha Samiti, and in this background, it has been sought to be suggested that Chairman of Gram Shiksha Samiti is Up Pradhan, as such brother and son of Pradhan cannot be prohibited from being appointed as Shikshamitra. Gram Shiksha Samiti has been constituted under the provisions of U.P. Basic Education Act, 1972, and as per the same, Chairman of Gram Shiksha Samiti is Pradhan.
It is well settled that once there is general legislation and holding the same field there is special provision, then general provision will have to be give way to the special provision, and special provision will have overriding effect. In exercise of power under Section 29 of U.P. Panchayat Raj Act, 1947, on 29.07.1999, various Samitis have been constituted to carry out various functions of Gram Panchayat, and Shiksah Samiti is one of them. Once Gram Shiksha Samiti is constituted in terms of Section 11 (1) of the U.P. Basic Education Act, 1972, the said Shiksha Samiti, as it has to perform same functions, the functions which are to be performed by Gram Shiksha Samiti under Section 11 (2) shall stand obliterated, and is of no consequence. Rules of 2002, is also in the context of committees constituted in terms of Section 29 of the U.P. Panchayat Raj Act, 1947, and provides for the way and manner, functioning of said committee is to be executed, and in this context, earlier situation has been reiterated that Pradhan would be Chairman of Planning and Development Committee and Up Pradhan of Shiksha Samiti. As already discussed above, once there is specific provision, holding the field by means of legislative act, then the provisions provided for qua the same field, provided by way of Rules are of no consequence, and basic schools will have to be run and managed by Gram Shiksha Samiti constituted in terms of Section 11 of the U.P. Basic Education Act, 1972, and not by Shiksha Samiti constituted in terms of Notification dated 29.07.1999 and referred to in Rules, 2002. In this background, once there is specific provision and keeping the same in mind restriction has been imposed, which is reasonable in nature and the engagement of Shikshamitra is not an employment in terms of Articles 14 and 16 of the Constitution, as such the stand being taken by petitioner is unsustainable. Once the State Government in its wisdom has chosen to put restriction on induction of relatives of Secretary and Chairman of Gram Shiksha Samiti, the same cannot be said to be unreasonable restriction, as it has a live nexus with the functioning of Shikshamitra. Shikshamitra has to function under Gram Shikhsa Samiti and has to perform teaching duties under the Headmaster, Secretary of Gram Shiksha Samiti. In case functioning of Shikshamitr is proper then renewal has to be done by Gram Shiksha Samiti, and in case work and conduct is not satisfactory, then Shikshamitra has to be removed by Gram Shiksha Samiti, by resolution passed by 2/3rd majority. In this background, if policy decision has been taken to keep relatives of Chairman and Secretary of Gram Shiksha Samiti outside the zone of consideration, same cannot be termed to be unreasonable restriction, as underlying idea behind the same is to maintain efficiency in functioning of Shikshamitra and to rule out favourism and maintain transparency qua the functioning of Shikshamitra, and same cannot be said to be violative and ultra vires of Articles 14 and 16 of the Constitution of India.
Writ petition, as has been framed and drawn, lacks substance and the same is dismissed.
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