- (1.) RAKESH Sharma, J. This special appeal has been filed against an order of the learned Single Judge by which the writ petition filed by the appellant was dismissed. It appears that an advertisement was issued for engagement of Siksha Mitra in respect of village Onawal of district Chandauli. In pursuance of the said advertisement the petitioner appellant Seema Kumari and respondent no. 6 Sunita Devi and other candidates applied, The quality point marks of the appellant were higher than those of the respondent no. 6 but the name of respondent no. 6 was proposed for engagement on the basis that the petitioner was not eligible as she was not a resident of the village Onawal. The petitioner filed objections before the committee constituted for the purpose against the proposal of the name of the 6th respondent and the said objections found favour with the committee and the name of the petitioner was thereafter proposed and the petitioner was appointed. Respondent no. 6 Sunita Devi challenged the appointment in writ petition no. 52711 of 2006 which was disposed of with a direction to the District Magistrate to decide her representation. In pursuance of the order of this court dated 21. 9. 06 the District Magistrate has decided the dispute. He has given a finding that the petitioner Seema Kumari was married in a village of another district Ghazipur and not being a resident of the village Onawal was not eligible. This order was challenged by the petitioner appellant in the writ petition which has given rise to this special appeal. The learned Single Judge was of the view that the finding recorded by the District Magistrate that the petitioner is not a resident of village Onawal is a finding of fact and hence the petition was dismissed.
(2.) WE have heard Sri Yogesh Agarwal counsel for the appellant and Sri Yatindra counsel for respondent no. 6. Sri Yogesh Agarwal has made three submissions. The first submission is that there is no requirement under the Government Orders that the candidate should belong to the same village where the Institution is situated and secondly that even if there is such a requirement the same would be invalid in view of the provisions of Article 16 of the Constitution of India which prohibit any discrimination on the ground of residence. The third submission is that the appellant is a resident of village Onawal and the view taken by the District Magistrate and the learned Single Judge that the appellant is a resident of another village is erroneous and that relevant materials like kutumb register and affidavit of the appellant have been ignored. We shall first examine the contention of the appellant relating to the prescribed qualifications. A copy of the G. O. Dated 1. 7. 2000 which provides for the engagement of shiksha mitra has been annexed as Annexure 2 to the affidavit filed in support of the stay application with the special appeal. The relevant portion relating to the qualification of the residence of the candidate in the same village is contained in para 3 of the G. O. The said portion is being quoted below:- "gramin Shiksha Samiti Dwara Us Gram Panchayat Mein Jiski Pradeshik Seema Main Vidyala Avasthit Hai, Nirdharit Ahartadhari Abhayarthiyon Ke Hi Avedan-Patra amantrit Karege. Vishesh Paristhithi Mein Yadi Kisi Gaon Main Ahr Abyarthi Uplabdh Na Ho to sambandhit Nyay Panchayat mein se Ahr abyarthi chinhankit kiye Ja Sakengein"
(3.) SRI Yogesh Agarwal submitted that all that the rule requires is that the Institution for which applications are invited should be situated in the same village Panchayat. We are afraid the interpretation put forward by the counsel for the petitioner does not appear to us to be correct. The latter portion of this rule makes the position quite clear inasmuch as it provides that in case an eligible candidate of the same village is not available a candidate from the same Nyaya Panchayat may be identified. In our view the proper interpretation of this part would be that it is only in the event of an eligible candidate of the same village being not available that recourse can be had to selecting a person from another village in the same Panchayat. Moreover it is not disputed that in the advertisement inviting applications the condition that the candidate should be the resident of the same village was specifically mentioned. The petitioner applied in pursuance of that advertisement and her case in fact is that she belongs to the same village. The first contention of the appellant's counsel in our opinion therefore does not have any merit. It is next contended that Article 16 (2) of the Constitution of India prohibits ineligibility or discrimination on the ground of residence in the matter of public employment. Sri Yogesh Agarwal submitted that the engagement as shiksha mitra however it may be described is in fact a public employment and therefore the restriction that the candidate should belong to the same village is an illegal restriction. He submitted firstly that the appointment of shiksha mitra is made by the State and the work is also taken by the State and salary is also paid out of State funds and therefore there exists a relationship of master and servant between the State and the shiksha mitra and hence the engagement of shiksha mitra would be a public employment. In such a case it is only the Parliament which under Article 16 (3) can make a law allowing such restriction. In support of the contention learned counsel for the appellant relied upon the meaning of the words 'employ' and 'employment' in Webster's Dictionary, which are quoted below:-;