Shiv Kumar Shukla (W.P. 7354 ... vs State Of U.P. Thru. District ...

Hon'ble Manish Mathur,J.

(C.M. Application No.72782 of 2012).

1. The application seeks condonation of delay in filing the special appeal.

2. For reasons given in the affidavit filed in support of the application for condonation of delay, the application is allowed.

3. Delay in filing the special appeal is hereby condoned.

4. On request of learned counsel for the parties, the case is being taken up for hearing today itself.

Order Date :- 5.8.2019 Nishant/-

Case :- SPECIAL APPEAL DEFECTIVE No. - 585 of 2012 Appellant :- Shiv Kumar Shukla (W.P. 7354 (S/S)2006) Respondent :- State Of U.P. Thru. District Magistrate Shrawasthi & Ors.

Counsel for Appellant :- Ashish Misra Counsel for Respondent :- C.S.C.,N.C. Upadhyay,Vindhywashni Kumar Hon'ble Ajai Lamba,J.

Hon'ble Manish Mathur,J.

(ORAL)

1. Shiv Kumar Shukla has preferred this special appeal in challenge to judgment dated 11.05.2012 rendered in Writ Petition No.7354 (SS) of 2006 titled 'Mangal Prasad vs. State of U.P. & others'.

Vide the impugned judgment, the writ petition was allowed relying on judgment rendered by learned Single Judge in Kanti Singh Yadav vs. State of U.P., and other (2007) 1 UPLBEC 859.

2. Appellant Shiv Kumar Shukla was respondent in the writ petition and therefore, being aggrieved has approached this Court in special appeal jurisdiction.

3. Learned counsel for the parties are ad idem that Basic Shiksha Adhikari/writ respondent preferred Special Appeal Defective No.596 of 2012 titled 'Zila Basic Shiksha Adhikari, Shrawasti vs. Mangal Prasad and others', directed against the impugned judgment, which has been decided by virtue of order dated 05.08.2019. It has been pleaded that this appeal be decided in the same terms.

In Special Appeal Defective No.596 of 2012 (supra), the following has been held by this Court on 05.08.2019 :-

"1. Zila Basic Shiksha Adhikari, Shrawasti has preferred this special appeal in challenge to judgment dated 11.05.2012 rendered in Writ Petition No.7354 (SS) of 2006 titled 'Mangal Prasad vs. State of U.P. and others'.

Vide the impugned order, the writ petition was allowed relying on judgment rendered by learned Single Judge in Kanti Singh Yadav vs. State of U.P., and others (2007) 1 ULBEC 859.

2. We have heard Shri Jyotinjaya Verma, learned counsel for the appellant and learned counsel for the respondents.

We have gone through contents of the impugned order.

3. Contention of learned counsel for the appellant Shri Jyotinjaya Verma is to the effect that admittedly the issue raised by virtue of the writ petition at the instance of respondent no.1/writ petitioner is in regard to right to be appointed as Shiksha Mitra for academic session 2006 - 07. It has further been pointed out that after coming into force The Right of Children to Free and Compulsory Education Act, 2009 (for short 'the Act of 2009'), Government Order dated 02.06.2010 was issued whereafter Shiksha Mitras are not being appointed.

It has been pleaded that for the given reasons no relief could possibly be granted to respondent no.1, even in 2012 when the impugned order was delivered.

Learned counsel has also pointed out that the impugned order relies on Kanti Singh Yadav's case (supra) to decide the matter in favour of respondent no.1/writ petitioner. Kanti Singh Yadav's case (supra) was subsequently over-ruled by a Full Bench of this Court reported as (2007) 2 UPLBEC 1674 - Daya Ram Singh Vs. State of U.P. and others.

4. We have put all the three queries to learned counsel for the respondents. Learned counsel for the respondents have not been able to dispute the legal position or the factual position, however contend that the respondent no.1/writ petitioner had a right to be appointed as Shiksha Mitra.

5. We having considered all the relevant facts and circumstances and are of the view that Shiksha Mitras are appointed for a particular academic session. In the case in hand, issue was raised in regard to appointment of Shiksha Mitra for academic session 2006 - 07. Possibly it is for this reason that the special appeal bench while dealing with Special Appeal No.957 (SB) of 2006 vide judgment dated 28.12.2006 directed the writ petition to be heard at the earliest, however the same could be decided only in the year 2012.

6. On the second count we have taken note of the fact that the Act of 2009 came into force in consequence to which Government Order dated 02.06.2010 was issued. The Government Order was issued so as to ensure that duly qualified and trained teachers are appointed in the interest of qualitative education. After issuance of Government Order dated 02.06.2010, Shiksha Mitras are not being appointed. Apparently, the said Government Order was not brought to the notice of learned Single Judge and therefore, judicial notice of the said Government Order could not be taken.

7. So far as the law is concerned, having gone through judgment rendered by the Full Bench in Daya Ram Singh's case (supra), we find that indeed law laid down in Kanti Singh Yadav's case (supra) was held to be not correct proposition of law.

8. For all the above given reason, no relief can be granted to the respondents.

9. On account of the above given reasons, we dispose of the appeal while holding that no relief in context of prayer for appointment of Shiksha Mitras can be granted at this juncture."

4. This appeal is decided in terms of above extracted order.

Order Date :- 5.8.2019 Nishant/-