District Education Officer (Basic), District Tehri Garhwal vs Pawan Singh Aswal

Judgment

1. The respondent Pawan Singh Aswal participated in a process of selection for appointment against the post of Shiksha Mitra for the year 2000-01. In the process of selection conducted by the Village Education Committee, the name of one Manju Devi was placed at Serial No. 1 in the Merit List. The respondent Pawan Singh Aswal was placed at Serial No. 2 in the Merit List. After the completion of the process of selection, the aforesaid Manju Devi was duly appointed as Shiksha Mitra. She discharged her duties for the year 2000-01 and was allowed to continue even for the years 2001-02 and 2002-03. Midstream her engagement for the year 2002- 03, she tendered her resignation on 17.9.2002. At this juncture, the Village Education Committee, while accepting the resignation of Manju Devi, resolved to allow the respondent Pawan Singh Aswal to render service as Shiksha Mitra, on account of the fact, that he had been selected at Serial no. 2 in the Merit List (for the year 2000-01). The determination rendered by the Village Education committee was duly approved by the District Basic Education Officer vide an order dated 24.9.2002. 2 Thereafter, respondent Pawan Singh Aswal commenced to discharge the duties of the post of Shiksha Mistra.

3. It would be relevant to mention that the respondent had commenced to discharge the duties of the post of Shiksha Mitra without obtaining any training, although training prior to appointment as Shiksha Mitra is imperative. In this behalf, reference may be made to the Government Order dated 1.7.2000, wherein it is, inter alia, noticed as under:- (cid:147)7- f(cid:146)k{kk fe= dk izf(cid:146)k{k.k%& Xzkke iapk;r }kjk p;fur ,oa ftyk lfefr }kjk vuqeksfnr f(cid:146)k{kk fe= dks ftyk f(cid:146)k{kk ,oa izf(cid:146)k{k.k laLFkku eas ,d ekg dk izf(cid:146)k{k.k iznku fd;k tk;sxk ;g izf(cid:146)k{k.k f(cid:146)k{kk fe= dks lQyrk iwoZd izkIr djuk vfuok;Z gksxkA blds i’pkr gh xzke f(cid:146)k{kk lfefr }kjk ikfjr izLrkouqlkj f(cid:146)k{kk fe= dks f(cid:146)k{kk dk;Z djus dh vuqefr iznku dh tk;sxhA bl izf(cid:146)k{k.k vof/k ds fy, mls :0 2250@& ds LFkku ij :0 400@& dk ekuns; ns; gksxkA ;fn f(cid:146)k{kk fe= dk vxys f(cid:146)k{kk l= ds fy;s p;u f(cid:146)k{kk lfefr }kjk dj fy;k tkuk gS rks mls vkxkeh l= esa 15 fnu dk iquZcksIlRed izf(cid:146)k{k.k vof/k eas mls :0 300@& dk ekuns; fn;k tk;sxkA(cid:148)(cid:148) Since no such training was given to the respondent, he approached this Court by filing Writ Petition (S/S) No. 1418 of 2004, wherein he made the following prayers:- (cid:147)It is therefore Most Respectfully prayed that this Hon(cid:146)ble Court may graciously be pleased to:- A. Issue a writ, order or direction in the nature of mandamus directing the respondents to call the petitioner for necessary training and pay his salary for the post of Shiksha Mitra in the Primary School Bhatti District Tehri Garhwal. B. Issue a writ, order or direction in the nature of mandamus directing the respondent No. 1 to pass appropriate order on the representation of the petitioner. 3 C. Issue any suitable writ, order or direction in the nature of which this Hon(cid:146)ble Court may deem fit and proper in the circumstances of the case. D. Award the cost of the writ petition to the petitioner.(cid:148) Insofar as Prayer (cid:147)A(cid:148) is concerned, the same is self- explanatory. However, insofar as Prayer (cid:147)B(cid:148) is concerned, it would be pertinent to mention that the claim of the petitioner was that having rendered service of Shiksha Mitra, he had not been disbursed the emoluments thereof, and as such, a direction be issued to the appellants herein to release the emoluments payable to him.

4. The aforesaid Writ Petition (S/S) No. 1418 of 2004 was disposed of by a learned Single Judge of this Court vide an order dated 7.3.2006. The operative part of the order dated 7.3.2006 is being extracted hereunder: (cid:147)In view of the above, liberty is given to the petitioner to move a fresh representation to the appropriate authority within one month after receiving certified copy of this order, who shall decide the same within two months thereafter. However, respondents are directed to pay the entire amount of salary to the petitioner for the period he worked as Shiksha Mitra within one month after obtaining the certified copy of this order.(cid:148) The operative part of the order contains two directions.

Firstly, to take a decision on the representation made by the respondent, and secondly, to pay him the entire emoluments due to him for the period, he had discharged the duties of the post of Shiksha Mitra.

5. During the course of hearing of the present Special Appeal, learned counsel for the appellants states, that the first direction, namely, to decide the representation filed by the respondent, has been rendered infructuous, inasmuch as, an order dated 10.2.2007 has already been passed. 4

6. Insofar as the second direction is concerned, it is the vehement contention of the learned counsel for the appellants, that the very appointment of the respondent was unauthorised. The respondent could not have been appointed without due approval from the Competent Authority, as also, without undergoing training envisaged in Paragraph 7 of the Government Order dated 1.7.2000 (already extracted hereinabove). It is, therefore, the contention of the learned counsel for the appellants that the direction issued by the learned Single Judge to pay emoluments to the respondent was wholly unjustified.

7. As against the submission advanced by the learned counsel for the appellants regarding the issue of payment of emoluments, it is the submission of the learned counsel for the respondent that the appointment of the respondent cannot be termed as a back-door entry. The respondent came to be appointed on the basis of the recommendation made by the Village Education Committee, wherein the name of the respondent was placed at Serial No. 2 in the Merit List, when the candidate placed at Serial No. 1 resigned on 17.9.2002 and the Village Education Committee resolved to take the respondent as a Shiksha Mitra in place of the candidate selected at Serial No. 1 in the Merit List. This determination of the Village Education Committee, namely, to appoint the respondent in place of the candidate selected at Serial No. 1 in the Merit List was duly approved by the District Basic Education Officer vide his order dated 24.9.2002. It is, therefore, the submission of the learned counsel for the respondent that the payment of emoluments for the period, the respondent discharged his duties as Shiksha Mitra cannot be withheld by the Authorities. 5

8. We have given our thoughtful consideration to the rival submissions advanced by the learned counsel for the parties. Since it is not disputed that the respondent was duly selected by the Village Education Committee, whereafter on the resignation of Manju Devi on

17.9.2002, the Village Education Committee resolved to engage the respondent as Shiksha Mitra in place of the aforesaid Manju Devi and the aforesaid resolution passed by the Village Education Committee was duly approved by the District Basic Education Officer fully substantiates that the appointment of the respondent was not as a matter of back-door entry. Whether or not, Competent Authority approved his appointment or deputed him for training, has to be the concern of the said Authority. Since the respondent has actually discharged duties, against the post of Shiksha Mitra, based on the resolution of the Village Education Committee, which was duly approved by the District Basic Education Officer, we are satisfied that the respondent is entitled to emoluments for the period he had rendered service as Shiksha Mitra. The extract of the Government Order

1.7.2000 reproduced hereinabove also substantiates that the respondent would be entitled to a meagre salary of Rs. 2250 per mensem for the period he rendered his duties as Shiksha Mitra. Surely an individual willing to render service for the entire month for such a meagre salary cannot be deprived of his efforts. Only an individual belonging to the weakest strata of society would accept emoluments of the nature allowed to Shiksha Mitras. We are, therefore, satisfied, that the direction issued by the learned Single Judge requiring the appellants to pay the respondent emoluments due to him for the period he rendered 6 service as Shiksha Mitra is fully justified. In spite of the fact that the respondent commenced to render service as Shiksha Mitra with effect from 24.9.2002, no such payment has been released to the respondent till date. In the facts and circumstances of this case, we are satisfied, that a direction should also be issued to the appellants to release entire arrears payable to the respondent within two months from today. It would be open to the appellants, if the appellants so choose, to determine who was responsible for the wrongful appointment of the respondent, if the appellants feel that his appointment was not proper, then it would be open to the appellants to recover the amount paid to the respondent from those, who had allegedly wrongfully appointed the respondent. This would ensure future no wrongful appointments are made in violation of Government Policy or instructions.

9. Special Appeal stands disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 13.5.2010 Rathour