Dilip B. Bhosale, C.J. - (1.) A Division Bench, while dealing with the instant appeal, framed the following questions of law and directed the papers to be placed before the Chief Justice for constituting a larger Bench for its opinion: (a) Whether inclusion of the name of a person in the select panel with reference to an advertisement published prior to the enforcement of the Government Order dated 02.06.2010 i.e. 01.04.2010 would confer any right of appointment even after 01.04.2010. (b) Whether in view of the Government Order dated 02.06.2010 no fresh appointment on the post of Shiksha Mitra can be made even if the selection had taken place earlier. (c) Whether the law laid down by the Division Bench of this Court in the case of Smt. Usha Kumari (supra) and Sheela Yadav (supra) is the correct law.
(2.) These questions arose while dealing with the appeal filed by the appellant - original petitioner who, in the writ petition, sought a writ of mandamus commanding the District Basic Education Officer, Basti as well as the Principal, District Education and Training Institute, Basti, to send him for training and then to appoint him on the post of Shiksha Mitra in Primary School Chachai, Gram Panchayat Chachai, Vikas Khand Gaur, District Basti. The appellant had applied for engagement as a Shiksha Mitra in response to the advertisement dated 21.11.2007 for the session 2007-08 and he claims that he was selected vide resolution dated 10.12.2007. His selection, however, could not be finalized, as few writ petitions were filed before this Court by several candidates who had also participated in the selection process. The writ petitions, including the writ petition filed by the appellant, were finally disposed of, directing the District Magistrate to consider their claim. The District Magistrate, vide order dated 15.07.2010 held that the selection of the appellant was justified. The order of the District Magistrate was subjected to challenge by another candidate before this Court in a writ petition bearing Civil Misc. Writ Petition No. 55300 of 2010, but the writ petition was dismissed vide order dated 09.09.2010. Thereafter, the appellant filed a writ petition, from which the instant appeal arises, seeking a direction to the respondents to send him for training and to appoint him as Shiksha Mitra. The writ petition was, however, dismissed, holding that the appellant was selected before 02.06.2010 and in view thereof and also in the light of a policy decision taken by the State Government vide Government Order dated 02.06.2010 that no Shiksha Mitra shall be engaged in view the Right to Education Act, 2009, the appellant's prayer cannot be granted. In short, it was held that once the scheme for appointment of Shiksha Mitra has been done away with in view of the Right to Education Act, 2009, no fresh appointment could be made on the post of Shiksha Mitra subsequent to the Government Order dated 02.06.2010.
(3.) The Division Bench, in this backdrop, while dealing with the appeal, noticed the judgment of this Court in Smt. Usha Kumari v. State of U.P. & Ors., Special Appeal No. 61 of 2014 , whereby another Division Bench of this Court had held that since the selection process had been initiated prior to the enforcement of the Government Order dated 02.06.2010, i.e. with effect from 1 April 2010, the right of the appellant, who was selected with reference to the earlier advertisement dated 2005, would not be lost. The Division Bench further noticed the judgment of one more Division Bench in Smt. Sheela Yadav & Ors. v. State of U.P. & Ors., Special Appeal No. 765 of 2011, decided on 09.05.2011 , affirming the view taken in Usha Kumari. The Division Bench, on examination of these judgments, found that one of the important aspects of the matter, namely, that mere selection does not confer any right and that mere inclusion of the name in the select list does not confer any right upon the selected candidate and if the State Government has taken a decision to do away with the appointment of Shiksha Mitras with effect from 1 April 2010, the incumbent, who might have been selected with reference to an advertisement published earlier, will get no right for a writ of mandamus after 1 April 2010 for appointment as a Shiksha Mitra did not appear to have been considered. Having so observed and after noticing the judgments of the Supreme Court, the Division Bench found it difficult to accept the general proposition of law as propounded in Usha Kumari and Sheela Yadav, and framed the above questions and requested to place them before a larger Bench for its opinion.;