Allahabad High Court
Anurag Singh vs State Of U.P. & Others on 28 January, 2010
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
Court No. 18
CIVIL MISC. WRIT PETITION NO. 4066 OF 2010
Anurag Singh Vs. State of U.P. and others
Hon'ble Sudhir Agarwal, J.
1. Heard Sri K.M. Misra, learned counsel for the petitioner and learned Standing Counsel and Sri Girjesh Tiwari, Advocate for the respondents.
2. The order impugned in this writ petition is the consequence of the judgement of this Court dated 17.04.2009 passed in Writ Petition No. 10938 of 2009 which has been confirmed in the Special Appeal No. 943 of 2009, decided on 21.12.2009 whereby the selection held for the post of Shiksha Mitra in District Gorakhpur has been set aside by this court and the official respondents were directed to prepare the select list afresh in the light of the observations made by this Court.
3. Sri K.M. Misra, learned counsel for the petitioner submits that the Government Order dated 10.10.2005 which provides preference to the Instructors who have worked in Informal Education Scheme itself is arbitrary to the extent it provides for such preference inasmuch as by providing such preference it excludes all other candidates from the field of competition and, therefore, there is no scope of any competition which is the basic concept of selection. He further submits that realising this fact by subsequent Government Order dated 24.04.2006, the State Government modified the criteria and instead of preference it provided weightage to the persons who had experience of Instructor. He submits that preference to the extent of exclusion of all other candidates makes the preferential candidates as a class by itself and this is irrational, arbitrary and violation of Article 14 of the Constitution of India.
24. In my view the submission lacks substance.
5. I straightway come to the question of validity to the condition of giving preference to the Instructor contained in the Government Order dated 10.10.2005. It is necessary to observe that the effect of preference is not on account of any decision of the executive but this is what it means and the law laid down by the Apex Court which has been followed and explained by a Full Bench of this Court in Daya Ram Singh Vs. State of U.P. and others, 2007(3) ESC 1760 where this Court in paras 13 to 16 held as under:
"13. In the present case, what we have to examine is as to whether what is provided, is a mere preference or a first priority. In the event, the rule provides a mere preference, it will mean that the candidates concerned will have to have equal marks to begin with and then one amongst so many, will be given a preference. As against that, if there is an en bloc priority given to a category, that will have to be preferred irrespective of the marks obtained. The word 'Variyata' has been defined in the Oxford Hindi into English Dictionary, as priority or precedence. Besides from the two Government Circulars, which are referred to above and which were issued subsequently, i.e, one dated 21.11.2005 and the latter dated 24.4.2006, the intention has been further clarified. As we have noted, the Government Circular dated 21.11.2005, gives the clarification specifically stating that an Instructor/Supervisor, who has worked in the nonformal education Scheme, if available and if having the other conditions of eligibility, and if falls in the prescribed category of reservation, will be appointed, even if he is having less number of marks. The Government Circular of 24.4.2006, clearly states that amongst the Instructors/Supervisors, one who has put in longer years of service, will be preferred. In the earlier Government Circular dated 10.10.2005, those who had passed B.Ed./L.T., were to be given the preference while stating that the word used was Adhimanyata (preference). That clause has been removed and the terms used in Clause no.4, are Prathama Variyata, which will mean 'first 3 priority' or 'precedence'. The provisions contained in this Clause, when read with the clarification dated 21.11.2005, clearly lead to the inference that the Instructors/Supervisors, who have worked in the non formal education Scheme ought to be preferred en bloc with priority over the others, if such persons are available.
14. This interpretation also stands to reason in view of the fact that such instructors have obtained experience in working in such a rural education Scheme. Besides, right from the time it was promulgated, the Scheme made it clear that it is not a Scheme of employment, but for spread of education. For that purpose, those who have the necessary experience, will have to be given precedence en bloc. This is what, the relevant rule has done. In State of U.P. & Anr. Vs. Om Prakash & Ors., reported at 2006 AIR SCW 4281, the Apex Court has interpreted the term 'preference' by laying down that the concerned candidate ought to possess the equal requisite qualification to begin with. Only when one or more of them are found equally positioned, then the additional qualification may be taken as a tilting factor as against others. The interpretation of the term 'preference' is undoubtedly very clear. However, in our case, we are concerned with finding out as to what is the provision made in the relevant rule.
15. As stated above, when we see the text of the rule, purpose of the Scheme and the Government Circulars, they make it clear that the Instructors/Supervisors ought to be preferred en bloc. It is a golden rule of interpretation that the Rule is to be read as it is and in the context in which it is framed. Thus, for example, in the context of taxation it has been laid down by the Apex Court in The Commissioner of Sales Tax, Uttar Pradesh, Lucknow Vs. M/s. Parson Tools and Plants, Kanpur, reported at AIR 1975 SC 1039, that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give full effect to the same. This has to be done without engrafting, adding or implying anything therein, which are not congenial to or consistent with such expressed intent of the lawgiver.4
16. In the present case, as stated above, when we see the provision made under the relevant rule in its correct context, it becomes clear that the relevant Clause no.4 provides for 'first priority' to the Instructors/Supervisors, who are in the nonformal education Scheme. That is the correct interpretation of Clause no.4 of Government Circular dated 10.10.2005. This is the answer to question no.1, which has been referred. As far as the second question is concerned, we have to hold that the decision in Smt. Kanti Singh's case (supra), does not lay down the correct preposition of law. The Reference is answered accordingly."
6. Once the effect of preference has been considered by the judicial verdict and has been laid down therein, it is evident that the condition prescribed for preference to certain candidates, makes them a class by itself and in such a case without showing that the said criteria is wholly irrational and has no nexus or the object to be achieved, it cannot be said that the said condition of preference is irrational and arbitrary. The purpose in the case in hand for appointing Shiksha Mitra is not to provide employment to certain persons but the primary objective is to provide education to starters, i.e., children under the Government's scheme of "Sarva Shiksha Abhiyan", i.e., education for all. The employment it generates is incidental and ancillary. The person who has already worked as Instructor under the non formal education scheme having experience of working in such a scheme obviously would construe a different class on account of experience qua those who have no such experience since the purpose is to provide education to all and obviously the persons who are experienced in imparting education to students in primary school would be able to serve better. This would be in the interest of students in comparison to those who have no such experience. The experienced person know better as to how to handle the young children getting education in 5 primary schools. Ex facie I, therefore, find no irrationality in the policy of providing preference to Instructors.
7. So far as the subsequent change in the policy is concerned, it does not mean that the earlier policy was irrational, arbitrary or illegal but it is always open to the executive to change its policy at any point of time and so long the policy at a particular point is not found ex facie irrational or arbitrary, no interference is called for.
8. So far as the impugned order is concerned, it is the outcome of the judgement of this Court as stated above and I do not find any occasion to interfere at this stage. The remedy lies to petitioner elsewhere. The writ petition lacks merit. Dismissed. Dt/28.01.2010 AK