ABRC, ALLAHABAD HIGHCOURT : सह समन्वयक के पद पर बने रहने हेतु डाली गयी याचिका हुई खारिज, मा0 न्यायालय का आदेश देखें
Court No. - 20
Case :- SERVICE SINGLE No. - 30490 of 2019
Petitioner :- Balbeer Singh & 36 Ors.
Respondent :- State Of U.P.Thru Prin.Secy.Basic Education Lko & Ors.
Counsel for Petitioner :- Amrendra Singh
Counsel for Respondent :- C.S.C.,A.M.Tripathi,Ajay Kumar
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioners, learned Standing counsel appearing for the State-respondents, Sri A.M.Tripathi, learned counsel appearing for the respondent no. 2 and Sri Ajay Kumar, learned counsel appearing for the respondent no. 5.
2. By means of the present petition, the petitioners have prayed for the following reliefs:-
(i) Issue a writ, order or direction in the nature of Certiorari to quash the letter dated 22nd October, 2019 issued by the Additional Chief Secretary to State Project Director, contained as Annexure No. 3 to this writ petiton.
(ii) Issue a writ, order or direction in the nature of Certiorari to quash the letter dated 25.10.2019 addressed to ALL A.B.S.A`s, contained in Annexure No. 4 to this writ petition.
(iii) Issue a writ, order or direction in the nature of Mandamus to restore the services of petitioners at the respective deputed post which is contained in Annexure No. 2 to this writ petition, in the interest of justice.
(iv) Issue such other order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, in favour of the petitioners.
(v) Allow the writ petition with cost.
3. The case set forth by the petitioners is that a notification had been issued on 21.06.2019 for the appointment of Coordinator (Sah Samanvayak) at the Block and City Level in pursuance to the Government order dated 02.02.2011. Copy of the said notification is annexure 1 to the writ petition. The said notification provided for a written examination and interview. The petitioners, who are either working as Assistant Teacher or Headmasters appeared for the said selection in pursuance to the said notification. After the petitioners were declared successful, an order dated 01.08.2019, a copy of which is annexure 2 to the writ petition was issued by which the petitioners along with several others were appointed on deputation basis in pursuance to the Government order dated 02.02.2011 and the selection that had been taken place in pursuance to the notification dated 21.06.2019 and after approval by the District Magistrate, for educational assistance on temporary basis. The order of selection provided that the said selection had been made for a period of three years. It is claimed that subsequent thereto through the Government order dated 22.10.2019, a copy of which is annexure 3 to the petition, a decision has been taken that most of the Assistant Block Resource Co-coordinator (hereinafter referred to as "A.B.R.C") were not functioning properly and a severe deficiency had been found in the working and at the same time quality education was also found to be suffering and thus it was decided to send back the A.B.R.C and the Co-coordinators to their respective institution for the purpose of carry out educational work. In pursuance thereof, another order dated 25.10.2019 has been passed by the District Basic Education Officer, Ayodhya, a copy of which is Annexure-4 to the petition, indicating that in pursuance to the order dated 22.10.2019 all the working of A.B.R.C and Nyaya Panchayat Resource Center (hereinafter referred to as "NPRC") should be relieved and sent back to their respective institution. Being aggrieved, the present petition has been filed praying for quashing of the order dated 22.10.2019 as well as the order dated 25.10.2019 which has been issued in pursuance to the order dated 22.10.2019 with the further prayer for restoring the services of the petitioners at the respective deputed post.
4. Learned counsel for the petitioner contends that once the petitioners have been selected and appointed in pursuance to the notification dated 21.06.2019 vide order dated 01.08.2019 and their appointment were on deputation for a period of three years, consequently without the said period of deputation having lapsed, the petitioners cannot be sent back to their respective institutions.
5. On the other hand, Sri A.M.Tripathi along with Sri Ajay Kumar, learned counsel for the contesting respondents submit that the order dated 22.10.2019 as well as the consequential order dated 25.10.2019 have been validly passed and the reasons for the same have already been indicated in the order dated 22.10.2019. Elaborating the same, Sri Ajay Kumar submits that once it was found that the petitioners and others who have been appointed were not functioning properly and on account of their working, the education work was also suffering, consequently a decision has been taken for sending them back to their original post in their respective institution for the purpose of the teaching work and, as such there is no illegality or infirmity in the said order. It is also contended that taking into consideration the law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Pushpa Rani reported in (2008) 9 SCC 242 once a policy decision has been taken the Courts may not interfere with the same as it is always the prerogative of the employer to post any employee or take a decision regarding their working conditions etc and no fault can be found in the same.
5. Sri Ajay Kumar has also placed reliance on a Division Bench judgment of this Court passed in Special Appeal No. 371 of 2011 Inre; Har Pal Singh and Ors Vs. State of U.P and Ors decided on 27.05.2011 to contend that the Division Bench of this Court has refused to interfere into an earlier policy decision when a Government order dated 02.02.2011 had been issued at an earlier stretch of time by the respondents which had replaced the earlier scheme of 2001 pertaining to appointment of co-ordinators. Reliance has also been placed on a Full Bench judgment of this Court in the case of Arun Kumar Singh and Ors Vs. State of U.P and Ors reported in (2013)1 ADJ 1 to contend that in a similar controversy this Court has held that even where a deputationist may be receiving a higher allowance that would not take away the right of the parent department to take back the A.B.R.C and N.P.R.C. Thus, it is contended that there is no illegality or infirmity in the impugned order and the writ petition merits to be dismissed.
6. Heard the learned counsel for the contesting parties and perused the records.
7. From the arguments as raised by the contesting parties and perusal of records it comes out that the petitioners who are all either working as Assistant Teachers or Headmasters in their respective institutions, had applied for appearing in the selection in pursuance to the notification dated 21.06.2019 for being posted on deputation basis as Coordinators which was to be made in pursuance to the Government order dated 02.02.2011. The petitioners having been found successful in the said selection were appointed through an order dated 01.08.2019 on deputation basis for a period of three years. However, it was clearly provided in the said order that the said post of B.R.C is a temporary post. Subsequent thereto, through the order dated 22.10.2019, upon a review having been made of the working of the Coordinators, it was found that the purpose of which they had been appointed was not being met and certain shortcomings were also noticed and it was also noticed that on account of their posting the education work is also suffering. In pursuance of the review, all the persons who had been selected, have been directed to be sent back to their parent institutions for teaching work. Whether the petitioners acquired a vested right for continuing as Coordinators in pursuance to the selection and the order dated 01.08.2019 would have to be considered by this Court.
8. The issue pertaining to a policy decision being taken by the Government is no longer res integra. The Apex Court in the case of Pushpa Rani (supra) has held that that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the sole preserve of the employer. The power of judicial review can only be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides and that the Court cannot sit in appeal over the judgment of the employer. For the sake of convenience, the relevant observations of the Apex Court in the case of Pushpa Rani (supra) are reproduced as under:-
"29. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
9. Further, the Full Bench of this Court in the case of Arun Kumar Singh (supra) while considering an earlier decision of the State Government for sending back the deputationist who are working as B.R.C and N.P.R.C on account of change of Government policy held as under:-
"38. Questions (a) and (b) both are reframed as only one question in following manner:-
(a) Whether the coordinator/co-coordinators who were working in Block Resource Centres and Nyaya Panchayat Resources Centres on the date of issuance of Government order dated 2nd February, 2011 could not have been repatriated to their parent institutions since they were entitled to receive additional monetary benefits while working on the post of coordinator/co-coordinators?
39. Our answer to the above reframed question is that the Government order dated 2nd February, 2011, which has reconstituted the Block Resource Centres and Nyaya Panchayat Resource Centres has rightly provided for sending back the coordinator/co-coordinators to their parent institutions and their entitlement to receive higher pay scale was no impediment in sending back the said teachers, moreso when actually no Headmaster/Teacher/Assistant Teacher of primary schools was getting higher pay scale while working as coordinators of Block Resource Centres or Nyaya Panchayat Resource Centres."
10. Likewise, the Division Bench of this Court in the case of Har Pal Singh (supra) has held as under:-
"POINTS ARISING FOR CONSIDERATION
The following points arise for consideration in this case:
(1)Under what circumstances this Court can interfere in policy decisions taken by the State Government.
(2)Whether the change in policy by issuance of Government Order dated 2nd February, 2011 is arbitrary and unreasonable.
(3) Whether the appellants have any vested right to continue as Coordinator/Co-Coordinator after the Government dated 2nd February, 2011 is given effect to.
(4)Whether the learned Single Judge was bound to follow the interim order passed in a similar matter by another Single Judge of the Lucknow Bench of this Court.
DISCUSSION AND FINDINGS
Point No.1.
We have given our thoughtful consideration to the various plea raised by the learned counsel for the parties. The extent and jurisdiction of a Court to interfere in policy decisions framed either by the Parliament/State Legislators or by the Executive Government is no longer res integra.
In the case of Km. Shrilekha Vidyarthi(supra) the Apex Court has held that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness it would be unconstitutional.
In the case of Ugar Sugar Wroks Ltd. vs. Delhi Administrative and others, (2001) 3 SCC 635 the Apex Court has held as follows:
"18. .....It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy...
From the perusal of the Government Order dated 2nd February, 2011, we are of the considered opinion that the change in the policy effected by the State Government is based on relevant considerations and cannot be said to be arbitrary so as to entitle this Court to interfere. It is for the State Government to see that the teaching does not suffer. It is the constitutional obligation to provide free education to the children between the age of 6years and 14 years. This is specially in aid of achieving the avowed object. Therefore, it cannot be said that the policy framed by the Government is arbitrary. The submission of the learned counsel for the appellants that one set of teachers are being replaced by another set of teachers is wholly misplaced. The existing Coordinators/Assistant Coordinators were not doing any regular teaching work. They were involved in supervision of teaching work and various other activities as a result of which teaching work in the school suffered. In the new scheme Co-Coordinators are also required to do teaching work which will be a welcome step towards fulfilling the constitutional obligation. ......
Applying the test laid down by the Apex Court in the aforesaid cases regarding interference in a policy decision, we are of the considered opinion that above policy framed by the State Government cannot be said to be arbitrary, unreasonable and it is the result of conscious decision on a review of the working of the existing system of Coordinators and Co-Coordinators and State is well within the jurisdiction to change the same in order to achieve the desired result. We may mention here that there is not allegation of mala fied raised against the State Government or the Authorities in framing the said policy. We further find that the change in the policy is of the State Government is well informed by reasons and it is to ensure that the education of the children does not suffer. Therefore, it cannot be said to be arbitrary and unreasonable so as to violate Article 14 of the Constitution of India or other parameters deduced under Point No.1.
Point No.3
While dealing with Point No.2 hereinabefore we have already held that the appointment of the appellant as Coordinators/Co-Coordinators was for a fixed term of 2 years. They were not paid any extra remuneration for that work. We also find that their lien on the original post of teacher has been maintained. Thus their appointment on the post of Coordinator/Co-Coordinator is only by way of deputation even if the appointment has been made by facing a selection process. It can be terminated at any time either by a special or general order as held by this Court in the case of Ram Kumar( supra) that an officiating employee has no right to post and his appointment can be cancelled at any time."
11. When the issue involved in the present case is seen in the context of the law laid down by the Apex Court in the case of Pushpa Rani (supra), the Full Bench judgment of this Court in the case of Arun Kumar Singh (supra) as well as a Division Bench judgment of this Court in the case of Har Pal Singh (supra) what the Court finds is that once a conscious decision has been taken by the Government through its order dated 22.10.2019 of sending back the Coordinators after scrutiny and it was found that the required results regarding academic supportive supervision and academic leadership have not come out from the Coordinators working as per prescribed arrangement in the course of their working and it was also found that most of the Coordinators remain engaged in the official work in B.R.C. and slackness was also observed in work proficiency and efficiency in the area of supportive supervision, consequently the said order cannot be said to be erroneous by any stretch of imagination. Even otherwise, it is settled proposition of law that a deputationist has no right to a post and this aspect of the matter has also been considered threadbare by the Full Bench of this Court in the case of Arun Kumar Singh (supra).
12. None of the ground that have been taken by the petitioners including the ground of natural justice makes out any ground that the action of the respondents is contrary to any constitutional or statutory provision or is vitiated on account of any malafide so as to persuade the Court to upset the decision that has been taken by the respondents.
13. Accordingly, taking into consideration the aforesaid discussion, no case for interference is made. The writ petition is dismissed.
Order Date :- 7.11.2019
Pachhere/-
(Abdul Moin,J)
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