A.P. Sahi, J. - (1.) The petitioner in this writ petition has challenged the select list prepared by the Respondent No.2 - the District Basic Education Officer, Chitrakoot, declaring the Respondent No. 5 to have been selected for being appointed as "Shiksha Mitra" under the Government Order dated 26.5.1999 read with the Government Orders dated 1..7.2000 and 10.10.2005 respectively. The petitioner contends that the said action of the authority is in violation of the selections made by the Gram Shiksha Samiti - Respondent No. 4 of Gram Sabha Ailaha Budhaiya, Post Office Manikpur, district - Chitrakoot, and is, therefore, in violation of the Government Orders referred to herein above. On merits, the petitioner contends that her average marks are 63.5% whereas that of Respondent No. 5 is 47% and, as such, the petitioner being higher in merit was entitled to be appointed as per the resolution of the Gram Shiksha Samiti. It is further alleged that the petitioner has also functioned as an Instructor under the non-format education scheme and, as such, she is also entitled for being appointed on the basis of first preference as per the Government Order dated 10.10.2005. In view of the aforesaid contentions, the petitioner urges that the selection and appointment of Respondent No. 5 is invalid and is liable to be set aside.
(2.) The learned Standing Counsel, appearing on behalf of the Respondent Nos. 1, 2 and 3, has urged that in view of the decision of a learned single Judge of this Court in the case of Kamla Pati Tripathi v. District Basic Education Officer and others, 2005 (3) ESC 1986 , the present writ petition is not maintainable. He contends that the appointment being purely contractual in nature and since only an honorarium is to be paid to a Shiksha Mitra, a writ petition would not be maintainable. A perusal of the judgment relied upon by the learned Standing Counsel indicates that the said case related to a challenge to the action of the Basic Education Officer, whereby he had restrained the petitioner therein from discharging his duties in the institution after the petitioner had been appointed and had already started working in the institution. The Basic Education Officer had taken the action on the ground that the appointment of the petitioner therein was irregular and, as such, the petitioner prayed for quashing of the order passed by the headmaster of the institution.
(3.) Relying on the decision in the case of Smt. Sunaina Singh, 2003 (4) ESC 2039 (AII) (DB) , and other decisions referred to therein, the Court went on to hold that since the services of the petitioner were contractual, therefore, any infringement of rights of the petitioner could be agitated in the ordinary courts of the land for the breach of contract of employment and that the remedy of the writ petition is misconceived. In support of the aforesaid conclusion, the learned single Judge in para 14 of the judgment held as under: "In view of the law laid down by Hon'ble the Apex Court, it will be evident that at the time of entry into the field on consideration of persons with whom the Government could contract at all act purely in its executive capacity and is bound by its obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers and in such case if there is any violation of constitutional powers and the powers by the authorities of State, the writ petition is maintainable. But after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of constitutional provision when the State or its agents purporting to act within the field perform any act. In the sphere, they can only claim rights. conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract.";