# Roshanee Singh v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-27
- **Case number:** Service Single No. 8368 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/roshanee-singh-v-state-of-u-p-ors-46909
- **Pages:** 5

## Headnote

Law
-
UP
Basic
Education
(Teacher) Service Rules, 1981 - Clause
2(V) - Word 'Shiksha Mitra' - Definition -
Absence from duty - Weightage of past
service - Benefit, when can be given -
Held, definition of Shiksha Mitra under
Clause 2 (V) of the Rules, 1981 is very
clear and purpose thereof is laudable as
only those Shiksha Mitras can be given
weightage of past services, who are
working as Shiksha Mitra after being
reverted as Shiksha Mitra from the post of
Assistant Teacher in compliance of the
dictum of Hon'ble Apex Court in re; Anand
Kumar Yadav's case - Such benefit cannot
be provided to those Shiksha Mitras, who
are not Shiksha Mitra for substantial
period at the time when such benefit was
to be provided. (Para 12)

Writ Petition dismissed. (E-1)

Cases relied on :-

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)03ILR A174
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 8368 of 2020

Roshanee Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Onkar Singh

Counsel for the Respondent:
C.S.C., Ajay

A.
Civil
Law
-
UP
Basic
Education
(Teacher) Service Rules, 1981 - Clause
2(V) - Word 'Shiksha Mitra' - Definition -
Absence from duty - Weightage of past
service - Benefit, when can be given -
Held, definition of Shiksha Mitra under
Clause 2 (V) of the Rules, 1981 is very
clear and purpose thereof is laudable as
only those Shiksha Mitras can be given
weightage of past services, who are
working as Shiksha Mitra after being
reverted as Shiksha Mitra from the post of
Assistant Teacher in compliance of the
dictum of Hon'ble Apex Court in re; Anand
Kumar Yadav's case - Such benefit cannot
be provided to those Shiksha Mitras, who
are not Shiksha Mitra for substantial
period at the time when such benefit was
to be provided. (Para 12)

Writ Petition dismissed. (E-1)

Cases relied on :-

1. Civil Appeal No. 9529 of 2017; St. of U.P. &
anr. Vs Anand Kumar Yadav & ors. decided by
Supreme Court on 25.07.2017

2. Vijay S. Sathaye Vs Indian Airlines Limited &
ors.; (2013) 10 SCC 253
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Onkar Singh, learned
counsel for the petitioner and Sri Ran Vijay
Singh, learned counsel for the opposite
parties.

2. By means of this petition, the
petitioner has prayed following reliefs:-

(I) Issue a writ, order or direction
in the nature of Certiorari for quashing the
definition of "Shiksha Mitra" as provided in
Clause 2 (V) of the Uttar Pradesh Basic
Education (Teacher) Service Rules, 1981, to
the extent which says that the "Shiksha
Mitra" means "working Shiksha Mitra"
Annexure No.1.

(II) Issue a writ, order or direction
in the nature of Certiorari for quashing and
set aside all the consequential Government
Orders, to the extent which treats "Shiksha
Mitra" as "Working Shiksha Mitra".

(III) Issue a writ, order or direction
in the nature of mandamus commanding to
the opposite parties to give all the benefits i.e.
weightage of Shiksha Mitra, as per her
Shiksha Mitra experience, to the petitioner
ignoring the condition of "Working Shiksha
Mitra".

(IV) Issue a writ, order or direction
in the nature of mandamus commanding to
the opposite parties, to permit the petitioner
to rejoin on the post of Shiksha Mitra, in
Primary School Badiyan Kheda, Block
Sikandarpur Karna, District Unnao.

(V) Issue any other writ, order or
direction that this Hon'ble Court may deem fit
and proper in the facts and circumstances of
the case and allow this writ petition with
cost."

3. By means of order dated 13.1.2021,
this Court while considering the request of
3 All. Roshanee Singh Vs. State of U.P. & Ors.
175
the learned counsel for the petitioner to file
amendment application granted him time to
file such application to explain the term
'working Shiksha Mitra' as indicated in
Appendix-I of the Uttar Pradesh Basic
Education (Teachers) Service (Twentieth
Amendment) Rules, 2017.

4. Today, learned counsel for the
petitioner has submitted that he shall not
file any amendment application as it is not
required in this case.

5. As per learned counsel for the
petitioner, the petitioner was initially
appointed as Shiksha Mitra in Primary
School Badiyan Kheda, Block Sikandarpur
Karna, District Unnao on 14.11.2008
pursuant to the Government Order dated
26.5.1999. Thereafter, she was absorbed/
appointed on the post of Assistant Teacher
on 1.7.2015 as per Government Order
dated 19.6.2013.

6. Batch of writ petitions were filed
before this Court by the persons, who
claimed to be eligible for appointment and
whose chances were affected by filling up
vacancies
of
Assistant
Teachers
by
regularizing the Shiksha Mitras against
such vacancies. Those writ petitions were
opposed by the State Government and
Shiksha Mitras by stating that the scheme
of Shiksha Mitras was to meet a situation
where sufficient trained Teachers were not
available while constitutional mandate of
imparting elementary education was to be
fulfilled. The issue referred to the Full
Bench of this Court to adjudicate as to
whether appointment of Shiksha Mitras in
pursuance of Government Order dated
26.5.1999 was of the statutory character.
Some more issues were raised before the
Full Bench but for deciding this writ
petition, there would be no fruitful purpose
to deal with those issues. The Full Bench
was of the view that the nature of
appointment of Shiksha Mitras could not
authorize them to be treated as Teacher in
terms of Uttar Pradesh Basic Education
(Teachers) Service Rules, 1981 (for brevity
"Rules, 1981"). Further, they did not have
the qualifications prescribed under the said
Rules inasmuch as on the date of
appointment, they did not have Bachelor
Degree nor they had Basic Teachers
Certificate as prescribed under the Rules,
1981. The Full Bench further held that the
reservation policy had not been followed.
No doubt they may have served the need of
the hour, their regular appointment in
violation of requisite statutory qualification
was illegal. The matter went in appeal
before the Hon'ble Apex Court in re; State
of U.P. and Another Vs. Anand Kumar
Yadav and Others, Civil Appeal No.9529
of 2017. The Hon'ble Apex Court was
pleased to uphold the view of the High
Court with certain observations to the
extent that it may be permissible to give
some
weightage
to
the
experience
ofShiksha Mitras or some age relaxation
may be possible, mandatory qualifications
cannot be dispensed with. Regularization of
Shiksha Mitras as Teacher was not
permissible. The Hon'ble Apex Court has
held that the Shiksha Mitras have got no
legal right to get any relief or preference
but in a peculiar situation, they ought to be
given opportunity to be considered for
recruitment if they have acquired or they
now acquire the requisite qualification in
terms of advertisements for recruitment for
next two consecutive recruitments. They
may also be given suitable age relaxation
and some weightage for their experience as
may be decided by the concerned authority.
Till they avail this opportunity, the State is
at liberty to continue them as Shiksha
Mitras on the same terms and conditions on
176 INDIAN LAW REPORTS ALLAHABAD SERIES
which they were working prior to their
absorption, if the State so decides.

7. As per learned counsel for the
petitioner, the aforesaid judgment of the
Hon'ble Apex Court came on 25.7.2017 and
the petitioner was permitted to revert back
on the post of Shiksha Mitra in same
institution till 10.8.2017. Further, the
petitioner went on leave on 11.8.2017 on
account of illness of her child and after her
child recovered from illness on 8.5.2018,
she requested to submit her joining at the
institution
but
Head
Master
of
the
institution refused to permit her joining. In
the counter affidavit, vide para-13, it has
been categorically indicated that after the
judgment of the Hon'ble Apex Court on
25.7.2017, the petitioner worked only for
16 days and from 11.8.2017, she never
turned up to discharge her duties nor
submitted any application for leave. In
para-14 of the counter affidavit, it has been
indicated that the post of Shiksha Mitra is
based on honourarium, therefore, it was not
permissible under the law to allow the
petitioner to join on the post of Shiksha
Mitra after such a long gap without there
being any sanctioned leave or permission
from the competent authority. Further, there
was no provision for leave without pay in
respect of Shiksha Mitras. The petitioner
could not deny the aforesaid submissions of
counter
affidavit
by
filing
rejoinder
affidavit and reply to paras-13 & 14 of the
counter affidavit has been given in paras-14
& 15 of the rejoinder affidavit. The
petitioner could not cite any provision of
law even during the course of argument to
the effect that Shiksha Mitras could have
been given leave without pay. Therefore,
the petitioner could have not been treated
"Working Shiksha Mitra" at the time of
providing her benefit of weightage in terms
of the judgment of Hon'ble Apex Court in
re; Anand Kumar Yadav (supra). Learned
counsel for the petitioner has contended
that the petitioner was qualified for the post
of Assistant Teacher as she got 100 marks
out of 150 marks in Assistant Teachers
Recruitment
Examination,
2019
and
declared passed. She was having B.T.C.
certificate. Since the petitioner was not
given weightage of her past services,
therefore, she could not finally get through.
The reason for not providing weightage is
that the weightage has been given to only
those Shiksha Mitras, who were working
Shiksha Mitras but the petitioner was not
working Shiksha Mitra as she was
absconding from job without any leave,
therefore, such weightage could have not
been provided to her. Learned counsel for
the petitioner has drawn attention of this
Court towards the definition of "Shiksha
Mitra", which is as under:-

""Shiksha
Mitras"
means
a
person working as such in junior basic
schools run by Basic Shiksha Parishad
under the Government Orders prior to the
commencement of Uttar Pradesh Right of
Children
to
Free
and
Compulsory
Education Rules, 2011.

Or a person who has been a
Shiksha Mitra and appointed as an
Assistant Teacher in Junior Basic Schools
run by Basic Shiksha Parishad and
reverted to work as Shiksha Mitra in
pursuance of the judgement of the Apex
Court in SLP No.32599 of 2015, State of
U.P. and Others Vs. Anand Kumar Yadav
and Others."

8. On the strength of aforesaid
definition,
learned
counsel
for
the
petitioner has submitted that the petitioner
is
fully
covered with
the
aforesaid
definition as she has been a Shiksha Mitra
and appointed as Assistant Teacher in an
3 All. Roshanee Singh Vs. State of U.P. & Ors.
177
institution in question and reverted to work
as Shiksha Mitra pursuant to the judgment
of the Hon'ble Apex Court in re; Anand
Kumar Yadav (supra). Therefore, her
absence from service w.e.f. 11.8.2017 may
not disentitle her to be treated as Shiksha
Mitra.

9. Sri Ran Vijay Singh, learned Addl.
Chief Standing Counsel has submitted with
vehemence that since the petitioner had
abandoned her job without getting the leave
sanctioned from the competent authority,
therefore, she may not be treated as Shiksha
Mitra. Undoubtedly, she has been Shiksha
Mitra and was appointed as Assistant Teacher
in an institution in question, thereafter
reverted to as Shiksha Mitra pursuant to the
judgment of the Hon'ble Apex Court in re;
Anand Kumar Yadav (supra) but after
serving 16 days as Shiksha Mitra, she
abandoned her job, therefore she cannot
claim, legally to be provided weightage of
past services. At least she should be serving
Shiksha Mitra. He has cited the judgment of
the Hon'ble Supreme Court in re; Vijay S.
Sathaye v. Indian Airlines Limited and
Others, (2013) 10 SCC 253, referring paras
12, 14 & 16, which are as under:-

"12. It is a settled law that an
employee cannot be termed as a slave, he
has a right to abandon the service any time
voluntarily by submitting his resignation
and alternatively, not joining the duty and
remaining absent for long. Absence from
duty in the beginning may be a misconduct
but when absence is for a very long period,
it may amount to voluntarily abandonment
of service and in that eventuality, the bonds
of service come to an end automatically
without requiring any order to be passed by
the employer. (emphasis supplied)

14.
For
the
purpose
of
termination, there has to be positive action
on the part of the employer while
abandonment of service is a consequence
of unilateral action on behalf of the
employee and the employer has no role in
it. Such an act cannot be termed as
'retrenchment' from service. (See: State of
Haryana v. Om Prakash, (1998) 8 SCC
733) (emphasis supplied)

16. In Syndicate bank v. Staff
Assn., (2000) 5 SCC 65 and Aligarh
Muslim University v. Mansoor Ali Khan,
(2000) 7 SCC 529, this Court ruled that if a
person is absent beyond the prescribed
period for which leave of any kind can be
granted, he should be treated to have
resigned and ceases to be in service. In
such a case, there is no need to hold an
enquiry or to give any notice as it would
amount to useless formalities. A similar
view has been reiterated in Banaras Hindu
University v. Shrikant, (2006) 11 SCC 42,
Chief Engineer (Construction) v. Keshava
Rao, (2005) 11 SCC 229 and Bank of
Baroda v. Anita Nandrajog, (2009) 9 SCC
462." (emphasis supplied)

10. On the strength of aforesaid
judgment of the Hon'ble Apex Court, Sri
Ran Vijay Singh has submitted that the
petitioner was absent without getting leave,
therefore she should be treated to have
resigned and ceased to be in service. When
she was no more in service at the time
when the weightage of past services was to
be awarded, there was no question of
awarding such weightage to the petitioner.
Sri Ran Vijay Singh has also submitted that
the definition of Shiksha Mitra under
Clause 2 (V) of the Rules, 1981 (as
amended) rightly indicates only those
Shiksha Mitras would be given weightage
if they are working as Shiksha Mitra after
being reverted on such post pursuant to the
direction of the Hon'ble Apex Court in re;
Anand
Kumar
Yadav
(supra).
The
178 INDIAN LAW REPORTS ALLAHABAD SERIES
Shiksha Mitras, who are not functioning as
Shiksha Mitra at particular point of time
when such weightage was to be awarded,
how can it be presumed that such person is
willing to take benefit of the direction of
the Hon'ble Apex Court in re; Anand
Kumar Yadav (supra).

11. He has further submitted that had
it been a short period, it could have been
understood
but
the
petitioner
was
absconding from duties of Shiksha Mitra
from 11.8.2017 and weightage of past
services was to be awarded in the month of
May, 2020 when the petitioner was not
Shiksha Mitra for the last about three years.
Therefore, the present petitioner may not be
given any relief as prayed in the writ
petition and the writ petition may be
dismissed with costs.

12. Having heard learned counsel for
the parties and having perused the material
available on record and the dictum of the
Hon'ble Apex Court in re; Vijay S. Sathaye
(supra), I am of the considered opinion that
the definition of Shiksha Mitra under
Clause 2 (V) of the Rules, 1981 (as
amended) is very clear and purpose thereof
is laudable as only those Shiksha Mitras
can be given weightage of past services,
who are working as Shiksha Mitra after
being reverted as Shiksha Mitra from the
post of Assistant Teacher in compliance of
the dictum of Hon'ble Apex Court in re;
Anand Kumar Yadav (supra). Such
benefit cannot be provided to those Shiksha
Mitras, who are not Shiksha Mitra for
substantial period at the time when such
benefit was to be provided. In the present
case, it is admission on the part of the
petitioner that she has not discharged the
duties of Shiksha Mitra since 11.8.2017.
She was not on valid leave. Shiksha Mitras
are paid honourarium. No provision of law
has been cited or shown by the learned
counsel for the petitioner to the effect that
Shiksha Mitras can be granted leave
without pay for substantially long period.

13. Therefore, I do not find any
infirmity or illegality in not providing
weightage of past services to the petitioner
in terms of Clause 2 (V) of the Rules, 1981,
which has been amended in compliance of
the dictum of Hon'ble Apex Court in re;
Anand
Kumar
Yadav
(supra).
Accordingly, the writ petition is dismissed
being devoid of merits.
----------
(2021)03ILR A178
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.03.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 15506 of 2019

Constable
2199
(PNO
162806090)
Sandeep Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Meenakshi Singh Parihar, A.P. Singh

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 311 (2)
(b) - UP Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules,
1991 - Rules 8 (2) (b) and 17 - Post of
Constable - Dismissal order - Criminal
proceeding
u/s
302
IPC
-
No
departmental inquiry - Absence of record
of reason of inquiry being impracticable -
Effect - Before proceedings to impose any
major penalty, the departmental inquiry is
a must and is a condition precedent -
However, in certain contingency said