- (1.) The Gram Shiksha Samiti, Primary School Pakri Devri, Post Pakri Devri, Block Belhar Kalan, District Sant Kabir Nagar, instituted writ proceedings questioning an order of the third respondent dated 24 June, 2011 requiring the payment of honorarium to the appellant. The appellant, it may be noted, had been appointed as a Shiksha Mitra in the Primary School, Pakri Devri. The learned single Judge has proceeded to allow the writ petition and set aside the order of 24 June, 2011 primarily on the ground that the services of the appellant had been terminated by a resolution of the Samiti passed on 19 May, 2007. Referring to the provisions of a government order, the learned Single Judge held that an order passed by the Samiti was final and in the absence of any challenge to the said resolution, it was not open to the third respondent to issue directions for the payment of honorarium to the appellant. Aggrieved by the judgment rendered by a learned single Judge on 4 December, 2015, the Shiksha Mitra has preferred the instant appeal.
(2.) Referring to the counter-affidavit filed in the writ proceedings it was contended that the resolution dated 19 May, 2007 was non est in the eyes of law inasmuch as no such resolution had been passed. It was contended that the appellant was never served with the decision of the Samiti terminating her services and therefore, the third respondent was clearly justified in issuing the directions for payment of honorarium. It was further submitted that the learned Single Judge has clearly erred in referring to the Government order in question inasmuch as subsequent Government orders which were in force at the relevant time conferred the power of removal, termination or non-renewal of contract of a Shiksha Mitra on the District Magistrate. It was submitted that the Gram Shiksha Samiti only had the power to recommend non-renewal or termination of a Shikha Mitra with the final authority being vested in the District Magistrate. In view of the above, it was contended that the resolution was null and void. Consequently it was urged that a failure on the part of the appellant to assail the same did not warrant the quashing of the order directing payment of honorarium.
(3.) We find that the Gram Shiksha Samiti clearly averred in its writ petition that the services of the appellant had been dispensed with vide resolution dated 19 May, 2007. This plea was taken in paragraph 23 of the writ petition. While replying to the contents of paragraph 23 of the writ petition, the appellant only averred that the contents thereof were not admitted and that a detailed reply had been given in the preceding paragraphs of the counter affidavit. It becomes relevant to note that in paragraph 3(m) of his affidavit filed in the writ proceedings, the appellant asserted that a copy of the resolution dated 19 May, 2007 came to light for the first time only when a representation dated 10 June, 2008 was submitted by the wife of the sixth respondent. We have referred to the pleadings exchanged between the parties in the writ proceedings in order to highlight that the resolution dated 19 May, 2007 was clearly in the knowledge of the appellant. The order of the District Magistrate directing payment of honorarium was challenged by the Gram Shiksha Samiti in the writ proceedings and one of the primary grounds was the resolution of 19 May, 2007. The direction for payment of honorarium was resisted on the ground that the services of the appellant had already been terminated. Despite the said disclosure in the writ petition and quite apart from the appellant otherwise having notice of the same, no challenge was laid to the said resolution. In our opinion, unless the order of termination was set aside a direction for the payment of honorarium was clearly unwarranted.;