- (1.) H. L. Gokhale, C. J. A reference has been made to the Full Bench, for deciding the following questions : (i) What is the correct interpretation of clause No. 4 of the Government Circular dated 10-10-2005, issued by the Government of Uttar Pradesh? (ii) Whether the decision rendered in the case of Smt. Kanti Singh v. State of U. P. & Ors. (Special Appeal No. 46 of 2007, decided on 15-1-2007) interpreting the said clause, is based on correct preposition of law?
(2.) THE facts leading to this reference are as follows. THE appellant, herein was one of the candidates for the post of Shiksha Mitra (Friends of education), which are the posts created for spread of primary education under the Scheme, which was floated by the State Government initially on 1st of July, 2000, and which has been revised by subsequent Government Circular dated 10th of October, 2005. THE rights of the teachers working under the Scheme are somewhat limited. Clause No. 4 of this Government Circular lays down the conditions of eligibility for the selection of Shiksha Mitra. This Clause when translated into English from Hindi reads as follows : "the minimum educational qualification for the Shiksha Mitra (men/women) will be passing of the Intermediate Examination conducted by the Uttar Pradesh Madhyamik Shiksha Parishad (Higher Secondary Education Board of U. P.), or any other attainment of a qualification recognized by the State Government. THE candidates, who are disabled, widows, or divorced women, will be given 10% extra marks over and above the marks, which they obtain on the basis of their educational qualifications. THE minimum age of the Shiksha Mitra on 1st of July of the relevant year, will be 18 years and maximum 35 years. As far as the disabled persons, widows and divorced women are concerned, the upper age limit will be relaxable by further 5 years. As far as the Instructors/supervisors working in the non-formal educational Scheme are concerned, they will be given the relaxation in the upper age limit by 5 years and will be appointed on the basis of Prathama Variyata- (first priority ). All the other conditions of appointment and of eligibility will be applicable to the Instructors/supervisors as they are. " At the end of the selection process, in which the appellant participated, a chart containing the particulars of the 12 participating candidates was prepared. One Vandana Pathak and one Sangeeta Yadav (Respondent No. 9 herein), were shown at Serial Nos. 1 and 2, as they secured 63. 5 and 60. 1 marks respectively. These marks are given by arriving of the average on the basis of the High School and Intermediate marks of the candidates. One Vivekanand Pathak (Respondent No. 8 herein), who is also a non-formal Instructor stood at Serial No. 11 with 47. 20 marks and the appellant with 47. 05 marks was shown at Serial No. 12. The question, which has arisen in this reference, is with respect to the interpretation of the term 'prathama Variyata'. The appellant's submission is that it means 'first priority' to be given to the non- formal Instructors/supervisors as a group. The Government Officer, who examined the marks and prepared the list, does not appear to have taken a different view on the interpretation of this Clause and would have issued an appointment order in favour of the appellant, but for the fact that the above referred Vivekanand Pathak (Respondent No. 8 herein), who is also a non-formal Instructor, had obtained better marks, i. e. , 47. 20, as against 47. 05 of the appellant. There was however, some deficiency in the papers submitted by respondent No. 8 and, therefore, the officer directed a re- examination of the papers of respondent No. 8.
(3.) THE appellant challenged this order by filing a Writ Petition Bearing No. 6319 of 2007. THE learned Single Judge, who heard the petition, did not go into this controversy between the appellant and respondent No. 8 herein, but observed that the appellant as an Instructor did not have any precedence at all. He referred to the judgment in the case of Smt. Kanti Singh v. State of U. P. & Ors. (supra), wherein it was held that under the Scheme what is contemplated, is a mere preference and not a precedence. It was further held that for seeking preference one must have equal marks and then only one can claim preference amongst the candidates, who are otherwise equal. This was as against the appellant's contention that the non-formal Instructors/supervisors have the 'first priority' as a group over the others under the aforesaid Clause No. 4 of the Government Circular dated 10-10-2005. This submission of the appellant was not accepted by the learned Single Judge and consequently, the writ petition was dismissed. The appellant preferred against this order of the learned Single Judge. The Division Bench, which heard the matter, was of the opinion that the view taken by the Division Bench in Smt. Kanti Singh's case (supra) required a re-consideration, particularly in the light of the judgment of the Apex Court in Secretary, A. P. Public Service Commission v. Y. V. V. R. Srinivasulu, reported at (2003) 5 SCC 341, which was in fact, referred in the judgment of Smt. Kanti Singh (supra), but the ratio thereof did not appear to have been correctly appreciated. The Division Bench, therefore, referred the above two questions for determination of a Full Bench. This is how the matter has been placed before this Bench.;