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Ravindra Singh v. State Of U.P. & Others - WRIT - A No. 23174 of 2005  RD-AH 1256 (5 May 2005)
Hon'ble Rakesh Tiwari, J.
Heard counsel for the parties and perused the record.
The petitioner, in the instant writ petition, has prayed for issuance of writs in the nature of certiorari quashing paragraph 4 of the Government order dated 1.7.2000, contained in Annexure 1 to the writ petition declaring the same to be unconstitutional and in the nature of mandamus directing the respondents to consider the application of the petitioner by increasing the age limit from 30 to 40 years by granting age relaxation as is provided in the U.P. Basic Education (Teachers) Service Rule 1981 and in Special B.T.C. Training Course.
The facts of the case, in brief, are that vide Government order dated 1.7.2000, Siksha Mitra Yojna was introduced by the State Government, Under the Siksha Mitra Yojna, an eligible candidate appointed as Shiksha Mitra in Primary School imparts education to children in Primary School.
The petitioner is B.Ed., and belongs to O.B.C. category, applied for his appointment as Shiksha Mitra in pursuance of an advertisement published in Hindustan Newspaper dated 11.2.2005. The application of the petitioner was rejected on the ground that he was overage i.e., more than 30 years of age, and was not eligible to apply.
It is urged by the counsel for the petitioner that the maximum age limit of 30 years for the appointment of candidates as Shiksha Mitra whether they belong to General, O.B.C, S.C or S.T. category whereas under the U.P. Basic Education (Teachers) Service Rules 1981 the maximum age limit for the appointment of a teacher in primary school is 32 years and if the candidate belongs to O.B.C., S.C or S.T category, age relaxation of five years is given to him. It is stated that the maximum age limit for the selection of Special B.T.C training course is 40 years wherein also candidates belonging to O.B.C., S.C and S.T. category are given age relaxation of 5 years as such, fixation of maximum age limit of 30 years for appointment of Shiksha Mitra without there being any age relaxation for candidates belonging to O.B.C., S.C and S.T. category is arbitrary.
That apart, counsel for the petitioner also contends that in paragraph 4 of the impugned Government Order, it is provided that the candidate having B.Ed/ L.T degree shall be preferred but no provision has been made for the preference of the candidate who has B.P.Ed./C.P.Ed., degree whereas in the selection of candidate for Special B.T.C. Training Course, the degree of B.P.Ed./ C.P.Ed. is treated as equal to B.Ed and L.T degree. Thus, denying the B.P.Ed/C.P.Ed degree holders from their right to be preferred to the selection of Shiksha Mitra is arbitrary in as much as discriminating them from the holder of B.Ed and L.T. degree in violation of Articles 14 and 16 of the Constitution because the aforesaid differentia has no rational relation with the object sought to be achieved by the impugned Government Order which is to appoint Shiksha Mitra in primary school for imparting education to the children up to class V and thereby promoting basic education in the State and also providing employment to the unemployed youth.
It is contended that the function of Shiksha Mitra and the holder of the Spcial B.T.C. Training Course is the same i.e., imparting instructions to the children in primary school and there is no nexus between the differentia and the object sought to be achieved by the impugned Government Order as it is provided therein that the tenure of Shiksha Mitra is temporary , generally of one academic session to automatically expire on the first day of May at the end of academic session.
It is stated that under the impugned Government Order that Gram Shiksha Samiti can terminate the Shiksha Mitra in the mid of academic session by passing a written resolution by two third majority of Shiksha Samiti whereas teachers, who are appointed in primary school under the U.P. Basic Education (Teachers) Service Rules 1981 and those who are appointed after holding of Special B.T.C Training Course are permanent which is discriminatory with regard to maximum age limit and between B.Ed./L.T and B.P.Ed/C.P.Ed. In a nutshell the argument of counsel for the petitioner is that paragraph 4 of the impugned Government Order treats unequal as equal by not giving any age relaxation to O.B.C., S.C and S.T. candidates in appointment of Shiksha Mitra whereas such type of age relaxation is given in the appointment in teachers in primary schools in spite of the fact that the work of both are similar, in nature, i.e., imparting education to the children in primary schools, as such, it is liable to be declared as unconstitutional.
The counsel for the petitioner has urged that according to Section 9 of the U.P. Basic Education Act, 1972 (hereinafter referred to as ''the Act,1972'), every teacher, officer and other employees serving under a local body exclusively in connection with Basic Schools has now been transferred and has become a teacher, officer or other employee of Uttar Pradesh Board of Basic Education. He has urged that Shiksha Mitra is also appointed in Basic School and thus he/she is also an employee of U.P. Board of Basic Education. Attention of the court has been drawn to Rule 2(1) (n) and (o) of the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as ''the Rules, 1981') wherein ''service' and ''teacher' are defined. It is submitted that according to the rules, ''teacher' means a person employed for imparting instructions in Nursery School, Basic School, Junior Basic School or Senior Basic School. Therefore, Shiksha Mitra is a teacher and his/her ''service' is U.P. Basic Education Teachers' service according to Rule 3 of the Rules, 1981. It is further stated that since Shiksha Mitra is teacher of U.P. Board of Basic Education under Section 9 of the Act, 1972, same age relaxation must be granted to O.B.C., S.C. and S.T candidate as have been granted in the recruitment of teacher in Basic School under Rule 6 of the U.P. Basic (Teachers) Service Rules, 1981 in recruitment of Siksha Mitra, which has not been provided in para 4 of the impugned Government order.
He next submits that Section 2(c) (iv) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 defines the words ''public services and posts' to mean the services and posts in connection with affairs of the State and includes services and posts in an educational institution owned and controlled by the State Government or which receives grant-in-aid from the State Government including an University established by or under Uttar Pradesh Act except an institution established and administered by minorities referred to inclause (1) of Article 30 of the Constitution. According to him, Shiksha Mitra is also ''public service and post' and the reservation policy should also be applied to the post of Shiksa Mitra as it is applied in other similar cases. Therefore, non-conferment of age relaxation to Shiksha Mitra belonging to O.B.C, S.C and S.T. category is arbitrary, unreasonable, unfair and unjust and is in violation of Articles 14 and 16 of the Constitution.
In support of his contentions, counsel for the petitioner placed reliance in Ram Krishna Dalmia v. Justice Tendulkar -A.I.R.1958 S.C-538 and Motor General Traders V. State of Andhra Pradesh (1984) S.C- 222 wherein it has been held that classification must be bounded on an intelligible differentia distinguishing persons or things that are grouped together from others left out of group and that differentia must have a rational relation with the object sought to be achieved by the statute in question. He also cited the decisions of apex court in R.C. G. Narayan Dev v. State of Orissa- A.I.R. 1953 S.C.-375 and R.D.Joshi v. Ajit Mills -A.I.R. 1977 S.C-2279 holding that it is the substance of the Act that is material and not merely the form or outward appearance.
Decision of apex court in Prem Prakash V. State of U.P. and others ( H.C. L.B.) 2005 (58) A.L.R-42 has been placed by the counsel for the petitioner in support of his case wherein it has been held that dying-in- harness rule shall also apply to a daily wager/muster roll employee, he contends that if dependant of a daily wager can be considered for appointment under Dying in Harness Rules, Shiksha Mitra appointed on contract basis can also be treated at par with Govt. employees.
Standing counsel has raised a preliminary objection that the writ petition is not maintainable as it has been held by a Division Bench of this Court in Smt. Saroj Singh V. State of U.P. and others- 2000(2) ESC-1263 that termination of contractual appointment of Anganbari workers, who where paid honourarium at the rate of Rs.400/- per month, that rights of the appellant, if any, flow out of contract and, as such, it is not possible to give any relief in the writ petition under Article 226 of the Constitution. To the same effect is the judgement in Special Appeal No. 509 of 1997- Smt. Sunaina Singh v. District Magistrate Mau and others wherein similar view was taken.
. It is further submitted that the controversy involved in the present petition stands resolved in writ petition No. 6989 (S/S) of 2004 (Sita Ram Vs State of U.P. & Others) decided on 17.12.2004 by the Lucknow Bench of this Court in respect of appointment of Shiksha Mitra in which it has been held that matter regarding appointment of Shiksha Mitra is not maintainable under Article 226of the Constitution. The view taken in aforesaid Civil Misc. Writ Petition No. 6989 (S/S) of 2004 has also been affirmed by the Division Bench of this Court in Special Appeal No. 547 of 2004 (Smt. Mala Devi Vs State of U.P. & others) decided on 17.5.2004 in which it has been held that no writ petition in respect of service matter of Shiksha Mitra is maintainable The relevant portion of the judgment is as under :-
" In our opinion it is not necessary to go into the correctness of otherwise on merits of the judgment of the learned Single Judge because we are of the opinion that the post of Shiksha Mitra is not a civil post at all The appointment of Shiksha Mitra is made under a scheme of the Government on which only honorarium is paid and hence no writ lies. This view was taken by a learned Single Judge in writ petition no. 15908 of2003- Pradeep Kumar vs. Adyaksh, Gram Shiksha Samiti and others on 15.4.2003. We are in agreement with the view taken by the learned Single Judge in the aforesaid case. Hence we are of he opinion that the writ was not maintainable as we hold that Shiksha Mitra is not a civil post at all. In Dr. Alom Kumar Singh Vs. State of U.P. 2002 ESC-427 it was held that an ad-hoc appointee receiving only honorarium has no right.
For the reasons given above, we dismiss this writ petition and sustain the judgement of the learned single Judge, but for a reason different from the one he has given.
Sd/- M. Katju, J
Dt. 17.5.2004 Sd/- R.S. Tripathi, J"
In reply to the preliminary objections by the Standing Counsel, the counsel for the petitioner submits that the present writ petition is maintainable because Government Order is law under Article 13(3) of the Constitution and in the present petition, the petitioner has challenged validity of paragraph 4 of the impugned Government Order, which violates the Fundamental Right of the petitioner as it is guaranteed under Articles 14 and 16 of the Constitution.
The Standing counsel rebutted the above contentions of counsel for the petitioner and stated that recruitment of the teachers appointed under the U.P. Basic Education (Teachers) Service Rules 1981 are employed in service of the Government. Nature of appointment of teacher is different from the nature of contractual appointment of Shiksha Mitra and so are their responsibilities and terms and conditions of service. The engagement of a Shiksha Mitra is not, at all, comparable to recruitment of teachers appointed under Basic Education Act in tenure, manner of recruitment, responsibilities, terms and conditions of service status or otherwise. The appointment of a Government teacher which is contract of service whereas appointment of Shiksha Mitra is a contract for service. Appointment of Shiksha Mitra is in an ''Yojna' or a scheme which is not a ''Government service'. The petitioner cannot claim discrimination in respect of teachers appointed under the U.P. Basic Education (Teachers) Service Rules 1981 as they belong to different intelligible classes. There is no violation of Articles 14 and 16 of the Constitution. Shiksha Mitra is not a Government servant as such, the provisions of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 is not applicable to him. The assertion of the counsel for the petitioner, therefore, is misconceived. The ratio laid down in Prem Prakash V. State of U.P. and others-( H.C.-L.B) 2005 (58) A.L.R-42, cited by the counsel for the petitioner, would also not apply as in the said decision as question of consideration of dependent of Government Servant under Dying in Harness Rules was involved. There is no question of eligibility or question of age bar under the said Rules whereas in the instant case question of upper age limit is involved. Similarly the decisions in R.C. G. Narayan Dev v. State of Orissa (supra) and R.D.Joshi v. Ajit Mills (supra) cited by the counsel for the petitioner are also clearly distinguishable as the impugned Government order is not a statute or a ''legislation' much less colourable legislation.
Be that as it may, the hard fact remains that engagement of Shiksha Mitra is contractual. He is paid honorarium under the contract for service and is not paid salary by the Government; he is not a Government servant. In the very first paragraph of the Government Order dated 1.7.2000, it has been clarified by the State Government that '''Shiksha Mitra programme is not employment programme' meaning thereby that the programme is meant for imparting proper education to the village-students and Shiksa Mitra cannot treat himself/herself to be a Government employee. This Government order also specifically provides that Shiksha Mitra will be appointed only on honourarium basis. Moreover, Shiksha Mitra is not holder of a civil post and is not a Government servant but is engaged on contract for service for a specific period of one academic session or one year. Since Siksha Mitra is not a Government servant. as such the writ petition is not amenable to Article 226 of the Constitution.
So far as the contention of counsel for the petitioner regarding preference given to the candidates having B.Ed/ L.T degree over candidates having B.P.Ed./C.P.Ed., degree amounting to discrimination and violation of Articles 14 and 16 of the Constitution, is concerned, suffice it to say that it has been the consistent view of apex court and various High Courts that State Government has full power to prescribe eligibility criteria for appointment on a particular post. If the scheme provides for recruitment from candidates who are less than 30 years of age then candidates who are not eligible to apply cannot make any grievance as there can be no comparison of equality between unequal and it is the prerogative of the authorities to decide the source of recruitment. It is now settled position of law that for imparting different levels of education, different types of training courses are required for the teachers. It does not appear to reason or justice for the courts to prescribe a qualification or eligibility criteria or direct an authority to accept a particular eligibility criteria as a proper one. It is not for the court to consider the relevance of eligibility criteria prescribed for a particular post and assess the comparative merits with others. See the judgments in P.M. Latha and another Vs. State of Kerala and others- (2003)3 S.C.C-541; Secretary Board of Basic Education V. Rajendra Singh - 2000 (3) E.S. C-1894; Yogesh Kumar and others v. Government of N.T.C.Delhi and others - J.T. 2003(2) S.C.-453; Nirmal Chandra Misra V State of U.P. (Civil Misc.Writ No. 28243 of 1996 decided on 29.10.1996); and Virendra Bahadur Singh v. State of U.P.-1995 (1) UPLBEC-628.
Similar controversy was raised in Civil Misc. Contempt Petition No. 1645 of 2003 -Dhaneshwar V. Sri Ramesh Singh decided on 3.9.2003 and Civil Misc. Contempt Petition no. 1900 of 2003-Bharat Ram and others V. Ramesh Singh decided on25.8.2003 wherein the crux of the decisions in P.M. Latha and another (supra) Secretary Board of Basic(supra); Yogesh Kumar and others (supra); Nirmal Chandra Misra (supra). decided on 29.10.1996); and Virendra Bahadur Singh (supra) was considered and following the ratio laid down in these case, it was held that tt is not for the court to consider the relevance of eligibility criteria prescribed for a particular post and assess the comparative merits with others.
In any case, the petitioner is admittedly overage and was not eligible to apply in pursuance of advertisement. The petitioner has no legal right. The writ petition is not maintainable as has been held by a Division Bench of this court in Special Appeal No. 547 of 2004- Smt. Mala Devi V.State of U.P. and others.
For the reasons stated above, the writ petition fails and is decided in terms of the aforesaid decision.
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