# Verma v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-25
- **Case number:** Civil Misc. Writ Petition No. 26189 of 2012
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/verma-v-state-of-u-p-and-others-42277
- **Pages:** 4

## Headnote

Constituting of India-Article, 226-Right
to appointment-petitioner being selected
on post of Shiksha Mitra in 2009-not
send on training due to ban dated
02.06.2010-considering two conflicting
views of Division Bench-holding ban not
applicable retrospectively another even
being selected due to ban have no rightquestion referred to Larger Bench.

Held: Para 6

There is a conflict in the law laid down
by the two Division Benches, as noticed
above, it has become necessary for this
Court to refer the following questions for
being referred to a Larger Bench:

(a) Whether mere selection on a
date prior to 02.06.2010 will confer a
right upon the incumbent to claim
appointment and for being sent for
training as Shiksha Mitra even after the
State Government has imposed a ban on
such appointment on 02.06.2010 and the
scheme of Shiksha Mitra itself has been
dropped by the State Government.

(b) Whether the law laid down by
the Division Bench in the case of Sonika
Verma vs. State of U.P. and others
(supra) or the law laid down by the
Division Benches in the case of Km.
Rekha Singh vs. State of U.P. and others
(supra) and in the case of Pankaj Kumar
vs. State of U.P. and others (supra) is the
correct law.
Case law discussed:
2011 (1) ESC 681; 1998 (1) ESC, 74 (SC); Km.
Rekha Singh vs. State of U.P. and others
(Special Appeal Defective No. 276 of 2011)

## Text

760 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL. SIDE
DATED: ALLAHABAD 25.05.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 26189 of 2012

Km. Sandhya Singh and others

 ...Petitioners
Versus
State of U.P.Thru. Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Babu Nandan Singh

Counsel for the Respondents:
C.S.C.

Constituting of India-Article, 226-Right
to appointment-petitioner being selected
on post of Shiksha Mitra in 2009-not
send on training due to ban dated
02.06.2010-considering two conflicting
views of Division Bench-holding ban not
applicable retrospectively another even
being selected due to ban have no rightquestion referred to Larger Bench.

Held: Para 6

There is a conflict in the law laid down
by the two Division Benches, as noticed
above, it has become necessary for this
Court to refer the following questions for
being referred to a Larger Bench:

(a) Whether mere selection on a
date prior to 02.06.2010 will confer a
right upon the incumbent to claim
appointment and for being sent for
training as Shiksha Mitra even after the
State Government has imposed a ban on
such appointment on 02.06.2010 and the
scheme of Shiksha Mitra itself has been
dropped by the State Government.

(b) Whether the law laid down by
the Division Bench in the case of Sonika
Verma vs. State of U.P. and others
(supra) or the law laid down by the
Division Benches in the case of Km.
Rekha Singh vs. State of U.P. and others
(supra) and in the case of Pankaj Kumar
vs. State of U.P. and others (supra) is the
correct law.
Case law discussed:
2011 (1) ESC 681; 1998 (1) ESC, 74 (SC); Km.
Rekha Singh vs. State of U.P. and others
(Special Appeal Defective No. 276 of 2011)

(Delivered by Hon'ble Arun Tandon, J.)

1. Petitioners, who are five in
number, claim to have been selected for
the post of Shiksha Mitra in the year
2009.
However,
they
were
neither
appointed as Shiksha Mitra nor were sent
for training despite the said selection. In
the meantime the State Government
imposed a ban on appointment of Shiksha
Mitra because of the change in the policy
vide Government Order dated 02.06.2010.
The scheme in respect of Shiksha Mitra
itself has been done away with and by
means of the subsequent government
order it has been provided that no further
training to Shiksha Mitras shall be
provided.

2. According to the petitioners one
Sheela Yadav who was also selected
similarly like the petitioner filed Civil
Misc. Writ Petition No. 15796 of 2011
before the High Court. The writ petition
was dismissed on 29.03.2011 because of
the ban imposed by the State Government
vide Government Order dated 02.06.2010.

3. Sheela Yadav, not being satisfied,
filed Special Appeal No. 765 of 2011.
The appeal has been allowed by the
Division Bench of the High Court and it
has been held that since selections had
taken place earlier in point of time to the
2 All] Km. Sandhya Singh and others V. State of U.P. and others
761
imposition of the ban, the same shall not
apply as it was prospective in nature. The
selected Shiksha Mitra was directed to be
sent for training.

4. According to the petitioner
against the order of the Division Bench,
Special Leave to Appeal was filed before
the Apex Court which has been dismissed
on
09.01.2012.
Petitioners
have,
therefore, come up before this Court for
similar orders being issued.

5. On behalf of the respondents it is
stated that although the Division Bench in
the case of Sonika Verms vs. State of
U.P. and others reported in 2011 (1)
ESC, 681 has held that the Government
Order dated 02.06.2010 is prospective in
nature, therefore, will not prohibit the
appointment and training of Shiksha
Mitra who had been selected earlier to the
imposition of ban. Yet two other Division
Benches of the Lucknow Bench of this
Court in the case of Km. Rekha Singh
vs. State of U.P. and others (Special
Appeal Defective No. 276 of 2011) and
in the case of Pankaj Kumar vs. State of
U.P.
and
others
(Special
Appeal
Defective No. 373 of 2011 dated
13.05.2011) have explained that mere
selection does not confer any rights as
laid down by the Apex Court in the case
of Government of Orissa through
Secretary, Commerce and Transport
Department,
Bhubaneshwar
vs.
Harprasad and others reported in 1998
(1) ESC, 74 (SC). The Division Benches
have gone on to hold that with the
imposition of the ban on 02.06.2010,
there can be no further direction for
appointment or training being imparted to
the Shiksha Mitra who were selected
earlier. The relevant portion of the
judgments of the said Division Benches of
this Court are as follows:

"Special Appeal Defective No. 276
of 2011 :

In the instant case, even before the
petitioner-appellant could be appointed
and sent for training, on account of
intervening circumstance, the State took a
stand that they are no longer making
appointment to the post of Shiksha Mitra
in view of the promulgation of the Right
to Education Act, 2009.

The selection only gives a right to
the selected candidate to be considered. It
is always open to the respondents to give
satisfactory reasons for not making
appointment. In the instant case, the
respondents have given sufficient reason
as to why the appointment could not be
made. That reason cannot be faulted,
namely that after promulgation of the
Right to Education Act, 2009, they are no
longer making any appointment to the
post of Shiksha Mitra"

"Special Appeal Defective No. 373
of 2011 :

Learned counsel for appellant also
referred to a judgment rendered by the
Division Bench headed by Hon'ble Chief
Justice in his favour. However, in the said
judgment, the appellant had been denied
appointment on the ground that other
similarly situated 22 candidates who have
been selected with him, had been given
appointment. In this case also, the
Division Bench has held that Govt. Order
2..6.2010 was to apply prospectively.

Learned counsel for Basic Shiksha
Adhikari, Sri Jyotinjay Verma referred to
762 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
another Division Bench judgment of
Allahabad Bench wherein it was held that
fresh
engagement
requires
a
prior
training, therefore, when no engagement
as such has been made, the case of the
appellant will be hit by Govt. Order dated
2nd June, 2010. Sri Verma also submitted
that though process of file started between
2008 and 2011 but the appellant did not
raise any issue till 2011 or in any case
before issuance of Circular of 2010.
Learned Counsel also submitted that State
Govt. has issued further two Circulars
dated
22.2.2011
and
1.3.2011
but
reiterates the first Circular dated 2.6.2010.
Thus, intention of the Govt. Order has
been made amply clear that there was a
ban on engagement after first Circular
dated 2.6.2010. Similarly, learned State
Counsel also referred to two judgments of
the Supreme Court. In the judgment
reported in AIR 1963 Supreme Court,
page 395, Bachhittar Singh v. State of
Punjab and another, a Constitution Bench
laid down the basic law that even in a
case where policy decision was taken as a
part of cabinet noting in favour of a
candidate yet if the same was not
communicated to the person, it did not
create any enforceable right. Learned
State Counsel further referred to a
judgment in Tagin Litin v. State of
Arunachal Pradesh, 1996(5) SCC 83
wherein it was laid down that till
appointment letter was issued or it was in
transit, no enforceable right could be
created.

In the instant case, though the
learned counsel for appellant has annexed
the recommendation of Village Level
Committee but there is nothing to show
that recommendation went up further or
District Level Committee caused delay by
sitting over the file. Moreover, the
appellant had all the opportunity to agitate
the issue before the date of issuance of
Circular on 2.6.2010 but instead the writ
petition was filed in 2011. Besides, there
is nothing from the record to show that a
decision was taken in favour of the
petitioner or there was nothing like
appointment letter for attending training
under the Right to Education Act.
Moreover, another Division Bench of
Allahabad Bench in Tarun Prakash
Pandey (supra), has categorically held that
till the training was completed, there was
no question of engagement as Shiksha
Mitra and since there was ban on
engagement even such candidates who
had completed training after appointment,
had no right to be communicated"

6. There is a conflict in the law laid
down by the two Division Benches, as
noticed above, it has become necessary
for this Court to refer the following
questions for being referred to a Larger
Bench :

(a) Whether mere selection on a date
prior to 02.06.2010 will confer a right
upon the incumbent to claim appointment
and for being sent for training as Shiksha
Mitra even after the State Government has
imposed a ban on such appointment on
02.06.2010 and the scheme of Shiksha
Mitra itself has been dropped by the State
Government.

(b) Whether the law laid down by the
Division Bench in the case of Sonika
Verma vs. State of U.P. and others (supra)
or the law laid down by the Division
Benches in the case of Km. Rekha Singh
vs. State of U.P. and others (supra) and in
the case of Pankaj Kumar vs. State of
U.P. and others (supra) is the correct law.
2 All] M/S. Upper Doab Sugar Mills Muzaffarnagar V. Prescibed Authority and others
763

7. Since similar matters are coming
up before this Court repeatedly, it would
be appropriate that the said question may
be answered by the Larger Bench, at the
earliest possible. Let the papers be laid
immediately before the Hon'ble The Chief
Justice for constituting the Larger Bench.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 32242 of 1997
And
Civil Misc Writ Petition No. 974 of 1998

M/S.
Upper
Doab
Sugar
Mills
Muzaffarnagar

 ...Petitioner
Versus
Prescribed Authority and others

 ...Respondents

Counsel for the Petitioner:
Sri V.B. Singh
Sri S.D.Singh

Counsel for the Respondents:
S.C.
Sri Deepak Verma
Sri S.K. Srivastava

Payment of Wages Act, 1936-Section-15
(2)
and
(3)-Power
of
Prescribes
Authority-where
the
relationship
of
employer
and
employee
seriously
disputed-the claimant being worker of
contractor/Transporter have no concern
with
petition-such
question
is
not
incidental
but
a
substantive
jurisdictional
issue-order
passed
by
Prescribed Authority-beyond jurisdiction.

Held: Para 16

To my mind, this issue is not incidental
to the question of deduction or delayed
payment but a condition precedent to
attract the very provisions of Act 1936.
Therefore, in a case where the very
relationship is under a serious cloud, and
needs
a
detailed
but
exclusive
discussion, it is beyond the jurisdiction
of Prescribed Authority under Section
15(1) and (2) of the Act 1936 and has to
be adjudicated in appropriate regular
proceedings by raising an industrial
dispute. It could not have been decided
by an authority under Section 15(1)
while entering a claim under Section
15(2) and assuming jurisdiction upon
itself to decide the said issue. It is infact
not an incidental but a substantial
jurisdictional
issue
relating
to
very
applicability of Act 1936. Hence this
could
not
have
been
decided
by
Prescribed Authority under Section 15 of
Act 1936. The impugned orders passed in
both the writ petitions are thus wholly
without jurisdiction.
Case law discussed:
1980 (40) FLR 362

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri S.D.Singh, learned
counsel for the petitioner. Names of Sri
Deepak Verma and Sri S.K.Srivastava are
shown in the cause list for the respondents
but none has appeared though the case has
been called in revised except learned
Standing Counsel for the respondents.

2. The common question that arises in
both the matters relates to the very
jurisdiction of the Prescribed Authority
under Payment of Wages Act, 1936
(hereinafter referred to as "Act 1936") to
decide the issue relating to relationship of
employer and employee and therefore, are
being heard and decided by this common
judgment.

3. The writ petition is directed against
order dated 7.7.1997 (Annexure 7 to the
writ petition No.32242 of 1997), and