High Court
Case Details
Court No. - 39 Case :- SPECIAL APPEAL No. - 129 of 2023 Appellant :- Chandrapal Singh And 9 Others Respondent :- State Of U P And 10 Others Counsel for Appellant :- Kailash Singh Kushwaha,Ajit Pratap Kushwaha Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vikas Budhwar,J.
Legal Reasoning
Heard learned counsel for the parties and perused the record. This appeal has been filed by 10 persons who claimed to have worked as Supervisor under Non-formal Education scheme launched by the State Government between the year 1995 to 2001 at different places in the State of U.P.
Decision
The prayer in the writ petition was to issue a direction to the State respondents to absorb the petitioners/appellants herein namely the Director of Education (Basic), Lucknow, on regular post with pay scale as per their eligibility and ability in any of the department in view of their long service rendered as Supervisor/Instructor in Non-formal Education Project. The writ petition was dismissed by the learned Single Judge vide judgment and order dated 31.1.2023 with the categorical finding that there was no justification to entertain the writ petition on account of inordinate delay of 22 years without there being any explanation in approaching this Court. It was further noted that with the enactment of the Right of Children to Free and Compulsory Education Act, 2009 only those candidates who possess qualification prescribed by the NCET can be appointed as teacher and the persons like the petitioners cannot be given appointment as teacher. Moreover, in the year 2016 itself, a decision has been taken in this regard and the letter dated 04.08.2016 has been written by the Additional Project Director, Sarva Shiksha Abhiyan, U.P. to the Joint Secretary, Basic Shiksha, Siksha Anubhag-5, U.P. Government, Lucknow that with the coming into force of the Act, 2009 w.e.f. 1.4.2010, there was no question of absorption of the Instructors in surplus on the post of teacher and the scheme has come to an end automatically. It is further noted by the learned Single Judge that from the averments in the writ petition, the actual date of engagement of the petitioners and the actual number of working days for which they have worked under the scheme could not be discerned. It is also noted that no statutory provision for regularization/absorption could be brought by the petitioner in the Writ Court to invoke its discretionary jurisdiction. Reliance placed on other decisions of the learned Single Judge in similar situation by the petitioners herein have not been agreed to for the above reasons. Noticing the grounds of rejection of the writ petition, we raised a pointed query to the counsel for the appellants to explain the inordinate latches in filing the writ petition. It is submitted by the learned counsel for the appellants that they were agitating their claims before the State Government and there has been some positive consideration at some point of time. It is further pointed out that the issue in relation to delay has been considered by a learned Single Judge in the judgment and order dated 18.8.2022 wherein the claim of the petitioners being fence sitters has been turned down on the ground that the State did not come forward to formulate a policy for absorption of those persons who have worked for a long period under the scheme of the State and, as such, the right of the petitioners cannot be said to have crystallized. It is further pointed out by the learned counsel for the appellants that once Special Appeal Defective No. 10 of 2023 filed by the State challenging the order of the learned Single Judge issuing directions to consider the claim of similarly situated persons has been dismissed on 10.1.2023, they cannot dispute the stand of the petitioners/appellants. Noticing all these submissions of the learned counsel for the appellants, having perused the judgment and order dated 25.5.2022 passed by the learned Single Judge in similar situation and the order of the Special Appellate Court dated 10.1.2023 in dismissing the special appeal filed by the State, we may note that we do not find any error in the decision of the learned Single Judge wherein the writ Court has refused to entertain the writ petition on account of delay of 22 years. It is an admitted fact of the matter that the scheme under which the petitioners/appellants were working had come to an end in the year 2001. The petitioners had approached this Court for the first time in the year 2023. The statement in the writ petition and in the present appeal that the petitioners were approaching the State Government and there has been consideration at some point of time of some similarly situated person is neither here nor there. The petitioners being fence sitters, the learned Single Judge cannot be said to have erred in dismissing their claim to issue mandamus to consider them for absorption on a regular post. Further, no statutory provision of absorption on a regular post could be brought before us nor any such provision has been brought before the learned Single Judge. No error, therefore, can be imputed to the said grounds of rejection of the writ petition. As regards the letter dated 4.8.2016, it is pointed out by the learned counsel for the appellants that the said letter pertains to absorption on the post of teacher whereas the appellants/petitioners are claiming absorption on the post other than those of teachers. The said letter, therefore, will not come in the way of the appellants/petitioners. Be that as it may, having noted the facts that the appellants/petitioners are fence sitters and there is no scheme as on date nor there is any statutory provision to absorb the persons working in the scheme in question which came to an end in the year 2001, we do not find any good ground to entertain the challenge. No interference in the judgment and order dated 31.1.2023 passed by the learned Single Judge is called for. However, it is made clear that the dismissal of the present appeal or the writ petition of the petitioners/appellants herein will not come in the way of the appellants/petitioners, in case, the State formulates any such scheme for absorption of the employees working in the scheme in question which has come to an end in the year 2001. The writ petition is dismissed. Order Date :- 16.3.2023 Brijesh Digitally signed by :- BRIJESH KUMAR High Court of Judicature at Allahabad