- (1.) PETITIONERS, who are five in number, claim to have been selected for the post of Shiksha Mitra in the year 2009. However, they were neither appointed as Shiksha Mitra nor were sent for training despite the said selection. In the meantime the State Government imposed a ban on appointment of Shiksha Mitra because of the change in the policy vide Government Order dated 02.06.2010. The scheme in respect of Shiksha Mitra itself has been done away with and by means of the subsequent government order it has been provided that no further training to Shiksha Mitras shall be provided.
(2.) ACCORDING to the petitioners one Sheela Yadav who was also selected similarly like the petitioner filed Civil Misc. Writ Petition No. 15796 of 2011 before the High Court. The writ petition was dismissed on 29.03.2011 because of the ban imposed by the State Government vide Government Order dated 02.06.2010. Sheela Yadav, not being satisfied, filed Special Appeal No. 765 of 2011. The appeal has been allowed by the Division Bench of the High Court and it has been held that since selections had taken place earlier in point of time to the imposition of the ban, the same shall not apply as it was prospective in nature. The selected Shiksha Mitra was directed to be sent for training. ACCORDING to the petitioner against the order of the Division Bench, Special Leave to Appeal was filed before the Apex Court which has been dismissed on 09.01.2012. Petitioners have, therefore, come up before this Court for similar orders being issued. On behalf of the respondents it is stated that although the Division Bench in the case of Sonika Verms vs. State of U.P. and others reported in 2011 (1) ESC, 681 has held that the Government Order dated 02.06.2010 is prospective in nature, therefore, will not prohibit the appointment and training of Shiksha Mitra who had been selected earlier to the imposition of ban. Yet two other Division Benches of the Lucknow Bench of this Court in the case of Km. Rekha Singh vs. State of U.P. and others (Special Appeal Defective No. 276 of 2011) and in the case of Pankaj Kumar vs. State of U.P. and others (Special Appeal Defective No. 373 of 2011 dated 13.05.2011) have explained that mere selection does not confer any rights as laid down by the Apex Court in the case of Government of Orissa through Secretary, Commerce and Transport Department, Bhubaneshwar vs. Harprasad and others reported in 1998 (1) ESC, 74 (SC). The Division Benches have gone on to hold that with the imposition of the ban on 02.06.2010, there can be no further direction for appointment or training being imparted to the Shiksha Mitra who were selected earlier. The relevant portion of the judgments of the said Division Benches of this Court are as follows: Appeal Defective No. 276 of 2011 : "Special In the instant case, even before the petitioner-appellant could be appointed and sent for training, on account of intervening circumstance, the State took a stand that they are no longer making appointment to the post of Shiksha Mitra in view of the promulgation of the Right to Education Act, 2009. The selection only gives a right to the selected candidate to be considered. It is always open to the respondents to give satisfactory reasons for not making appointment. In the instant case, the respondents have given sufficient reason as to why the appointment could not be made. That reason cannot be faulted, namely that after promulgation of the Right to Education Act, 2009, they are no longer making any appointment to the post of Shiksha Mitra".
(3.) APPEAL Defective No. 373 of 2011 : "Special Learned counsel for appellant also referred to a judgment rendered by the Division Bench headed by Hon'ble Chief Justice in his favour. However, in the said judgment, the appellant had been denied appointment on the ground that other similarly situated 22 candidates who have been selected with him, had been given appointment. In this case also, the Division Bench has held that Govt. Order 2..6.2010 was to apply prospectively. Learned counsel for Basic Shiksha Adhikari, Sri Jyotinjay Verma referred to another Division Bench judgment of Allahabad Bench wherein it was held that fresh engagement requires a prior training, therefore, when no engagement as such has been made, the case of the appellant will be hit by Govt. Order dated 2nd June, 2010. Sri Verma also submitted that though process of file started between 2008 and 2011 but the appellant did not raise any issue till 2011 or in any case before issuance of Circular of 2010. Learned Counsel also submitted that State Govt. has issued further two Circulars dated 22.2.2011 and 1.3.2011 but reiterates the first Circular dated 2.6.2010. Thus, intention of the Govt. Order has been made amply clear that there was a ban on engagement after first Circular dated 2.6.2010. Similarly, learned State Counsel also referred to two judgments of the Supreme Court. In the judgment reported in AIR 1963 Supreme Court, page 395, Bachhittar Singh v. State of Punjab and another, a Constitution Bench laid down the basic law that even in a case where policy decision was taken as a part of cabinet noting in favour of a candidate yet if the same was not communicated to the person, it did not create any enforceable right. Learned State Counsel further referred to a judgment in Tagin Litin v. State of Arunachal Pradesh, 1996(5) SCC 83 wherein it was laid down that till appointment letter was issued or it was in transit, no enforceable right could be created. In the instant case, though the learned counsel for appellant has annexed the recommendation of Village Level Committee but there is nothing to show that recommendation went up further or District Level Committee caused delay by sitting over the file. Moreover, the appellant had all the opportunity to agitate the issue before the date of issuance of Circular on 2.6.2010 but instead the writ petition was filed in 2011. Besides, there is nothing from the record to show that a decision was taken in favour of the petitioner or there was nothing like appointment letter for attending training under the Right to Education Act. Moreover, another Division Bench of Allahabad Bench in Tarun Prakash Pandey (supra), has categorically held that till the training was completed, there was no question of engagement as Shiksha Mitra and since there was ban on engagement even such candidates who had completed training after appointment, had no right to be communicated". There is a conflict in the law laid down by the two Division Benches, as noticed above, it has become necessary for this Court to refer the following questions for being referred to a Larger Bench : (a) Whether mere selection on a date prior to 02.06.2010 will confer a right upon the incumbent to claim appointment and for being sent for training as Shiksha Mitra even after the State Government has imposed a ban on such appointment on 02.06.2010 and the scheme of Shiksha Mitra itself has been dropped by the State Government. (b) Whether the law laid down by the Division Bench in the case of Sonika Verma vs. State of U.P. and others (supra) or the law laid down by the Division Benches in the case of Km. Rekha Singh vs. State of U.P. and others (supra) and in the case of Pankaj Kumar vs. State of U.P. and others (supra) is the correct law. Since similar matters are coming up before this Court repeatedly, it would be appropriate that the said question may be answered by the Larger Bench, at the earliest possible. Let the papers be laid immediately before the Hon'ble The Chief Justice for constituting the Larger Bench.;