A.P.SAHI, J. - (1.) THESE writ petitions relate to the selection, appointment and continuance or refusal to do so in respect of the petitioners as 'Shiksha Mitra' who are Teachers in primary schools under a scheme known as 'Shiksha Mitra Yojna'.
(2.) LEARNED Standing Counsel on behalf of the State look a preliminary objection to the maintainability of these writ petitions on the strength of 2 decisions of this Court one by a learned single Judge in Writ Petition No. 15908 of 2003 decided on 15.4.2003 and the other in Special Appeal No. 547 of 2004 (Smt. Mala Devi v. State of U.P. and Ors.) decided on 17.5.2004. The judgment of the learned Single Judge and that in Special Appeal referred to herein above are quoted herein below: Civil Misc. Writ Petition No. 15908 of 2003 Pradeep Kumar v. Adhyaksh, Gram Shiksha Samiti and Ors. 'Heard Sri Rajendra Yadav, Advocate holding brief of Sri K.K. Tripathi learned counsel for the petitioner, Sri V.K. Singh learned counsel appearing for respondent no. 1, Sri K. Sahai learned counsel appearing for respondent No. 2 an 4 learned Standing Counsel appearing for respondent no. 6. The petitioner claims appointment on the post of Shiksha Mitra. The appointment of Shiksha Mitra is made under a scheme of the Government and only honorarium is paid Shiksha Mitra is not a Civil post. No material has been placed to show that Shiksha Mitra holds a civil past The writ petition is not maintainable under Article 226 of the Constitution. The writ petition is, accordingly, dismissed. Sd/ - Honi V.M. Sahai, J' Special Appeal No. 547 of 2004 Smt. Mala Devi v. State of U.P. and Ors. 'This Special Appeal has been filed against the judgment of the learned Single dated 8.4.2004. We have heard learned counsel for the parties. In our opinion it is not necessary to go into the correctness or 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 of 2003 Pradeep Kumar v. Adhyaksh, Gram Shiksha Samiti and Ors., 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 the opinion that the writ was not maintainable as we hold that the Shiksha Mitra is not a civil post at all. In Dr. Alok Kumar Singh v. 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 judgment of the learned Single Judge, but for a reason from the one he has given. Sd/ - Hon. M. Katju, J. Sd/ -Hon. R.S. Tripathi, J.' On the other hand, learned counsel for the petitioners informed the Court that there was no occasion for the Division Bench in Special Appeal No. 547 of 2004 to have approved the learned single Judge decision in Writ Petition No. 15908 of 2003 (supra) inasmuch the said decision in the case of Pradeep Kumar decided on 15.4.2003 had already been set aside in Special Appeal No. 338 of 2003 decided on 5.5.2003 quoted herein below: Special Appeal No. 338 of 2003 Pradeep Kumar v. Adhyaksha Gram Shiksha Samiti and Ors. By consent of parties his appeal is treated as on day's list and take up for hearing. A writ application was moved by the writ petitioner asking for setting aside and order dated 25.2.2003 passed by Block Development Officer, Sadar Auraiya, District Auraiya and also directing the State - respondent not to release the fixed pay in favour of respondent No. 4 and other incidental reliefs. From a perusal of the impugned against which the present appeal has been preferred we find that the learned Judge proceeded on the basis that the writ petitioner himself claimed appointment on the post of Shiksha -Mitra although the relief claimed in the writ application was totally different. That being the position, we have no other alternative but to set aside the impugned prefer and send the case hack to the learned Judge for a decision afresh in accordance with law after giving hearing to the parties and alter passing a reasoned order. In the event the non -appearing respondents are aggrieved by this order, it will be] open for them to apply for recall of this order in the presence of other parties. With the above observations this Special Appeal is disposed of. In view of the order passed in the Special Appeal, the application for stay becomes infructous and is disposed of. Sd/ - Hon. Tanui Chatterjee, CJ Sd/ - Vineet Saran, J
(3.) IT has been further submitted that even otherwise the Division Bench judgment of Smt. Mala Devi while placing reliance on the case of Dr. Alok Kumar Singh v. State of U.P. and Ors., 2002 (2) ESC 427, has erroneously proceeded to adopt the reasoning thereof inasmuch as the said case had got nothing to do with the maintainability of a writ petition in a fact situation as involved in the present set of cases pertaining to Shiksha Mitra.;