Wednesday, April 3, 2013

UP ANUDESHAK BHARTI-Case :- WRIT - A No. - 14092 of 2013

anudeshak bharti se sambhandit case ko court ne khariz kar diya hai
Court No. - 30

Case :- WRIT - A No. - 14092 of 2013
Petitioner :- Ramvijai Yadav
Respondent :- State Of U.P.Thru Secy & Ors.
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,A.K.Yadav,R.A.Akhtar

Hon'ble Amreshwar Pratap Sahi,J.

This petition questions the parameters set out in the Government Order dated 31.1.2013 for engagement of Part-Time Instructors, particularly in the subject of Physical and Health Education, in Basic Schools run by the respondent State under the Basic Education Department on the ground that the criteria for providing benefit to Schools having a student strength of more than 100 is arbitrary and discriminatory.

The second ground is a challenge to Clause 11(2) of the aforesaid G.O. that provides that the candidature would stand restricted to the residents of the same district which offends Article 16 and 14 of the Constitution as no restriction in public employment can be enforced on the basis of geographical limitations or place of residence.

Sri Ashok Khare, learned Senior Counsel for the petitioner elaborating his submissions contends that the method to compute, allocate and identify the posts on the basis of more than 100 students in a School is an erroneous approach. Schools having less than 100 students would therefore stand discriminated and deprived of teachers in special subjects like Physical and Health Education which is compulsory in Basic Schools.
The said argument may not wade through as the provision made is in accordance with the student teacher ratio. If the number of students is less than 100 then there would no justification for having more teachers than required. For this one can fall upon the Government Order dated 5.4.2004 reference whereof has been made by the petitioner himself in Paras 26 and 27 of the petition and appended as Annexure 14. A perusal thereof provides a remedy which has been described as unjustifiable by the petitioner for no valid reason. The submission therefore has to be rejected.

Sri Khare has laid more stress on the second argument of discrimination on the ground of residence. He has heavily relied on two apex court judgments reported in (2002) 6 SCC Pg. 393 Harshendra Choubisa and others Vs. State of Rajasthan and others; and (2002) 6 SCC Pg. 562 Kailash Chand Sharma Vs. State of Rajasthan and others coupled with the full bench decision in the case of J.K. Soni Vs. State reported in 2010 (7) ADJ Pg. 407 to buttress his stand. He contends that restricting the candidature only to a district is denial of opportunity to apply in other districts. This according to him violates Article 16 as well. There is no rationality behind this restriction so as to achieve any objective of basic education or even employment. To give preference compulsorily is prohibitory in nature for no valid reason. He submits there was no such restriction under any scheme of part time engagement, and even if it was, the same does not appear to have been challenged. This sort of preference has the effect of eliminating candidates who are more meritorious but stand excluded from consideration altogether. He has invited the attention of the court to the other schemes including the engagement in Kasturba Gandhi Awasiya Balika Vidyalaya. The issue of restricting applications in the matter of Apprentice Teachers has also been cited as an example to contend that this court interfered with the same.

Refuting the submissions, Sri Ashok Kumar Yadav, learned Standing Counsel contends that the Government Order in Clause 1(6) spells out the reason as follows:-
^^1¼6½ pwafd va'kdkfyd vuqns'kdksa dks fu;r ekuns; :0 7000@& izfrekg ij j[kk tk jgk gS vr% vH;FkhZ dks mlh tuin dk fuoklh gksuk vfuok;Z gS rkfd og f'k{k.k dk;Z lqxerk ls dj ldsA^^

He further points out Clause 1(13) which recites as under:-
^^1¼13½ vH;FkhZ ftl fodkl[k.M dk fuoklh gS ;FkklEHko mlh fodkl[k.M esa mls rSukrh nh tk;s izFke rSukrh esa vkoafVr fo|ky; esa ftyk csfld f'k{kk vf/kdkjh }kjk dksbZ ifjorZu ugha fd;k tk;sxk ,oa p;fur vH;FkhZ dks mlh fo|ky; esa dk;Z djuk gksxkA^^

Sri Yadav submits that this provision made appears to be in the interest of the candidates who may be able to discharge their duties conveniently as they are being only paid an honraria of Rs. 7000/-. This also according to him is in the interest of the institution as part-time teachers would be readily available nearby and may not have to cover a long distance and would therefore be able to discharge their duties efficiently. He contends that no material has been brought to contradict the said recitals nor any thing to the contrary to indicate dilution of merit. There is no data or facts pleaded that may remotely suggest the lowering of merit in selection.
Sri Khare in rejoinder contends that there is no reason as to why a candidate not belonging to the same district cannot discharge his duties efficiently. Covering of a distance is also not material as a handsome amount is being paid as honraria and in these hard days of employment, a candidate would be willingly available to go to another district. He therefore submits that the argument is bereft of any rationale.

Having heard learned counsel and having perused the Government Order dated 31.1.2013 as well as the judgments cited at the bar, the object appears to be of providing cheap and adequate basic education within the limited sources of the State. The scheme is also aided by the Central Government. It offers engagement for only eleven months, renewable on performance. It is not a substantive or permanent employment. It gives a respite to the pressure on the teaching staff of a institution, employment to the local unemployed youth and benefit to the children. The object is therefore not to confer any vested right of public employment so as to attract the principles of service jurisprudence to the extent of constitutionality. The scheme also appears to cater to sustenance measures for locally available candidates which has a rational purpose.

The limiting of the candidature to the district has not been demonstrated by the petitioner to have necessarily resulted in lowering or compromising with merit. As a matter of fact no data has been disclosed to draw an objective inference as suggested. If a candidate is available locally for part-time engagement, he is in an advantageous position to discharge his duties. He also does not have to hassle for his daily needs if he lives nearby. It is for this reason that the Government Order provides for placing a candidate as far as possible in the same block of the district to which he belongs. There does not appear to be anything irrational about the same. Additionally, there is no challenge or any pleading criticising the aforesaid quoted clauses. The restriction of the candidature to a district does not amount to a complete prohibition. Rather, the opportunity is provided in the home district for convenience.

Coming to the two decisions of the apex court, the facts therein were that an additional bonus of marks while preparing merit was given @ 10% marks to a candidate of the same district and @ 5% marks to a candidate of the Rural Area. The justification pleaded was that it would give an impetus to candidates of rural area to stick to their areas and not rush for a placement in an urban area. The second reason pleaded was that a candidate of the same area would be able to communicate with the students more efficiently. Both reasons were rejected by the High Court and upheld by the Apex Court holding them to be irrational and the preferential weightage of marks to be violative of Article 14 and 16 as they were founded merely on the basis of residence. The same judgment however in Para 14 of Kailash Chand Sharma's case (supra) holds that such discrimination is not attracted where it is not merely related to residence but the factum of residence is taken into account in addition to other relevant factors. The said decisions were related to public employment as Gram Sewaks and Teachers on permanent basis, and was not concerned with any part-time scheme engagement as presently involved.

In the instant case no weightage is being extended to the merit of a candidate. There is no positive discriminatory act which may give advantage over merit. The said decisions deprecated any State act that led to variation in merit. There is no such matter of incidence involved herein so as to draw a parallel from the said decisions. The status of employment and the purpose as pleaded were on an altogether different footing in the said cases. The same therefore are of no advantage to the petitioners. The ratio of the judgment in the case of J.K. Soni (supra) does not come close to the controversy at hand and therefore also does not apply on the facts of the present case.

There is yet another reason for not interfering. These are policy matters for short-term employments. They do not deserve to be interfered with necessarily unless it is so grave that it may require a redressal under Article 226 of the Constitution. The process impedes the implementation of such programmes that are in public interest and in particular for Basic Schools where conditions have fast deteriorated. Schemes with domicile restrictions like Shiksha Mitra have survived for long, may be without such challenge.

Accordingly, for all the reasons set out hereinabove, the petition cannot succeed and is hereby dismissed.

Order Date :- 2.4.2013

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