HIGH COURT OF CHHATTISOH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) ^to. 2913 of 2009 PETITIONERS Trivikram Pradhan and others. VERSUS RESPQNDENTS State of Chhattisgarh and others. Shri Mateen Siddiqui counsel forthe petitioners. Shri Kishore Bhaduri Addltional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2780 of 2009 PETITIONER Vipjn Kumar Verma. VERSUS State of Chhattisgarh and others. RESPONDENTS Shri Mateen Siddiqui counsel for the p^ltioner. Shri Kishore Bhaduri Additlonal Advocate General forthe respondents/State. Shri A.S. Kachhwaha counsel for respondent Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2794 of 2009 PET!T1QNER Mahendra Sharma. VERSUS RESPONDENTS State of Chhattisgarh and others. 1 Shrl Rajiv Shrivastava counsel for the petitioner. Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. WrK Petition (S) No. 2796 of 2009 PETmONER Jai Narayan Sahu. VERSUS RESPONDENTS State of Chhattlsgarh and othcrs. Shri Rajiv Shrivastava counsel forthe petitioner. Shrt Kishore Bhaduri Additionat Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petttion (S) No. 2796 of 2009 PETITIONER Ramanuj Sharma. VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel for the petKioner. Shri Kishore Bhaduri Additiona! Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2797 of2009 PETmONER Samar Singh Thakur. VERSUS RESPONDENTS State of Chhaflisgarh and others. Shri Rajiv Shrivastava counsel for the petitioner. Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2798 of 2009 PETmONER Rati Ram Sonwani. VERSUS 3- RESPONDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel forthe petitioner. Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2799 of 2009 PETmONER Kashi Ram Sahu. VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel for the petitioner. Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Misston. Writ Petition (S) No. 2800 of 2009 PETITIONER Surya Kant Vajpayee. VERSUS ' RESPONDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel forthe petltioner. Shri Kishore Bhaduri Additional Advocate General forthe respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2801 of2009 PETITIONER AmarSinghPatet. VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Rajiv ShrivastavacQynsel for the petitioner. (/ Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2802 of2009 PETmONER Dev Prasad Bhardwaj. VERSUS RESPONDENTS State of Chhattisgarh and othere. Shri Rajiv Shrivastava counsel forthe petitioner. Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. t^chhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2803 of 2009 PETmONER Jamuna Kishore Sharma. VERSUS RESPQNDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel forthe petttioner. Shri Klshore Bhaduri Addltional Advocate General for the respondents/State. Shri A.S. Kachhwaha counset for respondent - Rajfv Gandhi Shiksha l\4isston. Writ Petition (S) No. 2804 of 2009 PETmONER Rajendra Kumar Keskar. VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel for the petitioner. Shri Kishore Bhaduri Additional Advocate General forthe respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. x'^ c- Writ Petttion (S) ^to. 2805 of2009 PETITIONER Moti Lal Bhardwaj. VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel for the petitioner. Shri Kishore Bhaduri Additional Advocate General forthe respondents/State. Shri A.S. l^chhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2806 of 2009 PETITIONER Paras Ram Sonwani. VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Rajiv Shrivastava counsel forthe petitioner. Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2868 of 2009 PETITIONER Ishwar Prasad Tnvari. VERSUS RESPQNDENTS Union of tndia and others. Shri P.P. Sahu couns^l forthe petitioner. Shri Raghvendra Pradhan counsel for Union of India. Shri fOshore Bhaduri Additional Advocate General forthe respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Misston. Writ Petition (S) No. 2877 of 2008 6- PETmONER RESPONDENTS VERSUS Aditya Shukla. State of Chhattisgarti and others. Shri Rajiv Shrivastava counset for the petitioner. Shri Kishore Bhaduri Additionat Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2947 of2009 PETnriONERS Bhagat Singh and another. VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Mahendra Dubey counsel for the petitioners. Shri Kishore Bhaduri Additional Advocate General for the respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Misston. RESPONDENTS Writ Petttion (S) No. 294S of 2009 PETrTIONERS Shesh Narayan Sharma and anothw. VERSUS State of Chhattisgarh and others. Shri Mahendra Dubey counsel for the petitioners. Shri Kishore Bhaduri Additional Advocate General forthe respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. Writ Petition (S) No. 2571 of2009 PETITIONERS JayjayramTiwari and othere. VERSUS RESPONDENTS Union of India and others. Shri P.P. Sahu counsel forthe petitioner. Shri Raghvendra Pradhan counset for Union of India. Shri Kishore Bhaduri Ackiitional Advocate General forthe respondents/State. Shri A.S. Kachhwaha counsel for respondent - Rajiv Gandhi Shiksha Mission. WRIT PETITION UNDER ARTICLE 228 W THE CONSTrTUTION OF INDIA ORDER ()3.0%2009) Since the dispute involved in ali the aforementioned writ petitions is of identical character, they are disposed of by this common order. 2. Challenge in all these petitions is to the issuance of various advertisements and the action of the State Government by whteh a decision has been taken to conduct an examination for appointment of Cluster Academic Co-coordinator (for brevity "Coordinator") under Sarva Shiksha Abhiyan. This decision was taken by the State Govemment in pursuance of the letter dated 13.2.2009 written by the Under Secretary, School Education Department which reads as under : "ro, The Mission Dfrector, Rajeev Gandhi Shiksha Mission, Chhattisgarh, Raipur Sub:- Regarding appqintment criteria of Cluster Acadermc coordinator under Sarve Shiksha Abhiyan. Tillnow Incharge Cluster Acaderruc coordinator is taken on deputation by distt. Coll6ctor as per the follovwng criteria. For the post ofCluster Academic coordinator appointment, priority is given to teachers who are graduate, B.Ed., B.T.I., Trained teacher, with pay scale Rs.5000-8000, minimum age /s 45 years, wider touring capacity and of U(L.'»fiU»BU£>^rMfWI!t»—cl»'-W9-'f. sound health havlng 5 years teachlng experience in the post of "Teacher". The appointment process whksh is m fonse is amongst Head Master of upper primary school racommended by D.E.O. and appolnted by collector, As the baas of appolnfment is racomnwnded by D.E.O. onty, so at many places assistant teachers are also in charge wWiout fulfilling mentioned criteria. The quality of curriculam mll improve when Cluster Acaderric Coordlnator appointed is knowledgeable and skilled. The entirs selection process and eligibility is deflned below - 1. For ffie post of Clu^er Acadenw: coorcBnator the minimum qualincation Is graduate, B.Ecf., B.T.I. (D.Ed.), Trained teacher, in the pay scafe Rs. 5000-8000, maximum age 55 years, wider touring havlng capaclty and of sound health and haw'ng mlnimum teachlng experience of 5 years In primary / upper primary school hokllng the post of "Teacher" will be appolnted on priority basis. 2. Collector should advertise the post of Clustet flcademic coorcSnator, on the basls of the above mentioned criteria. 3. Zrte Panchayat shoukl invite applicatlon and verify it on the basis of eliglbility mentioned above. 4. DIET of concemed cSstrict should conduct brief exam ofthe eligible candklates. In the first part sySabus related to subject knawriedge from c/ass / to y, and the second part related to "Teaching aptitude' For testing teaching aptitude. question should be related to theory of educaSon, educational psychology, educaffonal Innovaffon, slall etc. Interwew should be based on testing of subject knowledge, leadershlp slvll, management sfcif/, communicatkin skill, problem solvtng skill, presentafion slvll and other abllities 80% should be kept in written examlnation. In which 50-50 marks can be kept or written exam of part-1 and part-11, 20% sftou/af bs kept forinterwew. 5. For setecffon process a dfe(ric( feve/ a commlttee headed by ttie chlef execuffve ofRcsr and consfeffng of dist. EducaVon ofttcer, assistant commissloner tribal devetopment, and District Project coonSnator as member and principal dlst. -^x^ ^ — Institute of educaSon and training as a member secretary. 6. After the written exairination selacted candidates has to appear before selecBon committee for interview, which should be based as mentioned in point no. 04 and havlng posittve thinking, wkler touring capadty be assessed. Selectlon of Cluster Academic coorcSnator will be based on combining 20% marks of interviaw and 80% marks ofwritten exam afterhaving approvaf of collector. 7. All the old and new Cluster Academic coordinator will be selected on the basis of brief exam. 8. Head masters of primary / upper primary school will not be selected for Cluster Acadenvc coordinator. 9. Appointment should be made for maximum 5 years. If after selection any lack in efficiency is observed then one month prior notice be given and they should be relieved for their on'ginalpost. 10. Post can also be filled by shiksha karmi -02 in any ctuster where no application has been received by teachers or in absence of eligible teachers. Bibiana Tirkey Under Secretary C.G. Govt. School Education Dept.RaipurfC.G.)" 3. The main grievance of the petitioners in this batch of petitions is that they are working as Coordinator since 1996 onwards and after expiry of about 12 years no fresh recruitment can be made by dislodging them. The writ petitions have been filed by the Assistant Teachers, Head Masters and the Upper Divislon Teachers with an averment that firstly they are not required to face an examination to be conducted at the District Level and secondly the Assistant Teachers and the Head Masters who have been debarred from appearing in the examination have every right to IC participate in the examination and they can not be excluded from participating in the examination. 4. Sometime in the year 1996 the Government of India introduced a scheme commonly known as District Primary Education Programme (for brevity ("DPEP") with an object to impart free education up to primary tevel to the down trodden people of the society. Initially, under the DPEP scheme the Central Government used to give aid to the extent of 75 per cent and the remaining 25 per cent was being given by the State Government. It is not in dispute that presently the Central Government is giving 65 per cent whereas remaining 35 per cent is being given by the State Government. The first and foremost object of the DPEP scheme was to ensure qualitative improvement in the education. In orderto achieve the object of qualitative improvement in education, the need for establishing a unit (nomenclature given as "cluster") of twenty five to thirty teachers was felt and thus in one school centre of a cluster was established and all the schools of a particular cluster are situated within the radius of 8 kms. For the purpose <*f bringing improvement in the quality of education a Cluster Academic Coordinator (for brevity "the Coordinator") was appointed for solving the problems being faced by the teachers by way of continuous monitoring and feed back. 5. After introduction of the DPEP scheme while appointing the Coordinators in the year 1 996-97, the State Government appointed some of the teachers designating them as the Coordinators and they were given the extra responsibility of supervision with regard to impartihg education and implementation of the programme. 6. It is not in dispute that the District Education Officer used to nominate the concerned teacher for their designation as the Coordinator and then after approval by the Collector, the Coordinators used to start their work. The main task of the Coordinators is to improve the system by monitoring and feed back method and to have proper coordination amongst the schools of 1".:.>':?: ':.<^', the clusters. It is further not disputed that initially no extra payment whatsoever was being made to these Coordinatore but since 2007- 08 they are being paid Rs. 275 per month as honorarlum. It is also not disputed that this honorarium is being paid to these Coordinators because they are required to vlsit various schools situated within the radius of 8 kms. It is this scheme whtoh in the year 2002-03 was renamed as Sarve Shiksha Abhiyan and the Coordinators are still performing their job as per their initial appointment. It is not disputed tha^ from the year 1996 titl introduction ofthe Sarva Shiksha Abhiyan i.e. 2002-03, focus ofthe scheme was to impart education up to the students of class 5 only and improve it qualitatlvely. However, after introduction of the Sarva Shiksha Abhiyan, the scheme extended up to the students of class eight. Though some of the petitionere are working as Assistant Teachers, their qualification is as suchthat they coukl have been appointed as Upper Diviston Teacher or Lecturer and could ahways teach the higher classes. 7. Contention of Shri Rajiv Shrivastava appearing for the petitionera in most of these petitions is that once the petitionere have been appointed as the Coordinators in the year 1996 onwards and have worked for about 13 yeare, they can not be removed from their post and if at all the State Govemment wants to fill up the posts of Coordinators, it is free to adopt whichever methodotogy it wants but the present position of the petjtionere should not be disturbed. He has filed various letters showring that the performance of the petitioners was found satisfactory and the authorities were directed not to engage the Coordinatore in any other work so that the efficiency of the performance remains unexposed to any adversity. He further submits that performance of the petitioners as Coordinators has been appreciated time and again and the specific directions were issued not to assign them any ottier work which ultimately becomes an obstacle in the work of Coordinatore. Some of these lettere have also been issued by the Miasion Director, Raipur. He further submits that in some of the letters It has been admitted by the Mission Director that it requires a lot of tlme to train the Coordinators and enhance thelr potential. He submits that if the Coordinators are engaged In some other fiekt, the object of the Sarva Shiksha Abhiyan will vanish in air. He submits that after their appointment as Coordlnatore the pet'rtioners have undergone various trainings and after putting in hard labour, they could be abte to achieve the aim. His submission is that while imparting training to the Coordinators it is not onty the petttioners who have spent their valuable time and worked hard, but the Govemment has also invested a lot of time and money in the same. His further submisston is that there is no basis for introducing the new so called scherhe and taking a decision to remove the old Coordinators and then to appoint the Coordinatore afresh. According to him, the stand of the Government that performance of the petitioners was not satisfactory has no foundation because if any of the Coordinators is not doing welt, he can always be removed as has already been done In certain cases. His submission is that the entire exercise being done anew is of no use and contrary to the object sought tobe achieved. He submits that the Government has not substantlated its stand as to how the performance ofthe petitioners has been found to be unsatisfactory. 8. It is argued by Mr. Shrivastava that as per the condition of the advertisement (Annexure P-2), applications are being invited from amongst the Teachers, Shiksha Karmis Grade -II. According to him, the Teachers whether they are holding the post of Assi^ant Teacher or Upper Division Teacher or Head Master are entitled to participate in the examination. Word Teacher" has been defined in Rule 2 (9) and that Inctudes Lab Assistant, Craft Teacher, tnstructor, Lecturer, Assistant Teacher, Professor and all other persons who are engaged in teaching work. He argued that even in the policy matters the Court can Interfere as the scope under Article 226 is not limited. He placed reliance on the declsion of the Supreme Court in the matter of State of Madhva Pradesh and others vs. Hazarilal and submits that as a result of change in legal parameters of judicial revlew, principal of unreasonableness has been replaced by the doctrine of proportionallty. 9. It is further argued by Shri Rajiv Shrivastava Advocate that the State Government has the power to amend the rule but not retrospectively. To substantiate this argument he relied upon the decision of the Supreme Court in the matter of P.U. Joshi and others vs. Accountant General. Ahmedabad and others with Union of India and others vs. Basudeva Dora and others . In respect of this argument he further relied upon another decision of the Supreme Court in the matter of Marripati Naaaraia and others vs. Government of Andhra Pradesh and others . As regards the fact that the petitioners have already undergone a special training, he placed reliance on the declsion of the Supreme Court in the matter of U.P. State Road Transport Corporation and another vs. U.P. Parivahan Niaam Shishukhs Beroiaar Sanah and others and submits that preference shouM be given to the persons who have already undergone a training over the direct recruits in the matter of employment as such trained persons having invested time, energy, money etc. have the legitimate expectation and it should not be allowed to go waste. 10. Likewise, Shri Mateen Siddiqui appearing for the petitioners in some of the petitions besides supporting the argument of Shri Rajiv Shrivastava Advocate, submits that letter dated 13.2.2009 which is the basis for conducting the examination In all the districts has been issued by the Under Secretary of the School Education Department and as this letter has been addressed by him to the Mission Director, Rajiv GandhiShiksha Mjssion, Chhattisgarh, it cannot be termed asa policy or the directlon under the scheme of the Sarva Shiksha Abhiyan because the School Education Department of the State Government is not empowered to issue ' (2008) 3 SCC 273 2 (2003) 2 SCC 632 3 (2007) 11 SCC 522 4(1995)2SCC1 l=dH1^ff^KST7^--^^Syi^UlGa'.3?;.^.--~-f' ' i'Sje»y'\ -ll< any such circular and at the most it can only be issued as per the requirement of Article 162 in the name of the Govemor. He further submits that in the letter dated 13.2.2009 (Annexure P-4) of Writ Petition NO.,! 2913/2009 it has been mentioned that number of persons haye also been appointed as the Coordtnators on the recommendations of the District Education Officer who are not even qualified and are working as Assistant Teacher though no such instances have been given by the State Govemment. He submits that some of the petitloners are working as Head ^4asters but they have also been excluded from participating in the examination whereas merely on the basis of their experience in the profession they should have been allowed to participate in the examlnation because if vlewed from any angle they are more experienced and quallfied than Shlksha Karml Grade II who have been permitted to participate In the examination. He submits that without the consent of Unton of India, the State Govemment can not adopt any procedure for the appointment of Coordinators. !t has been further argued that after excluding the Head Master and the Senior Coordlnators, new pereons woutd be appointed as Coordinators from amongst Shiksha Karml Grade II and the position would be that the senlor teachere and head masters wouid be required to work under thelr juniors and particularly under Shiksha Karmis which is not the cadre of School Education Department. He submits that in the reply of respondent No.4 though it has been mentioned that if the Coordinators would also succeed in the examination, they would be given weightage in the interview but what weight would be glven has not been ctarified and no such criterion has been flxed for this purpose. He submits that the post of Assistant Teacher or the Head Master which was being held by the petitioners have already been filled up by appointing Shiksha Karmis against those posts and for all practical purposes the appointment of the petitioners can be said to be agalnst the post of Coordinatore and they are no more deemed to be the teacher on thg previous post. He also submits that some of the petltionersare working as Head ^4aster and therefore, they can l'.'- J:^; -IS"- also teach thestudents up to class elght. He further submits that the procedure to be adopted for appointment of coordinatore is still the same as it was in case of the petitioners eariier. 11. Shri P.P. Sahu and Shri Mahendra Dubey counsel for the petitioners in some of the petitions have adopted the argument advanced by Shri Rajiv Shrivastava and Shri Mateen Siddiqui advocates. However, they laid emphasis on the point that by one decision the Government can not remove all the Coordinatore working since 1996 onwards and the Education Department can not direct the Mission Director of Rajiv Gandhi Shiksha Mission to evolve any methodology for recruitment of the Coordinators. They also submit that even if an assistant teacher has acquired the experience as the Coordinator, he has every right to participate in the examination and to continue on the post. 12. Per contra, Shri Kishore Bhaduri, leamed Acklitional Advocate General appearing for the respondents/State and Shri A.S. Kachhwaha appearing for the Rajiv Gandhi Shiksha Mission submlt that it is the domain of the respondents to decide as to how a particular post has to be filled up and what procedure is required to be adopted there for. It has been further submitted that the petitioners were appointed sometime in the year 1996-97 and at that time the scheme was onty in respect of the students from Class 1 to 5 whereas after introduction of the Sarva Shiksha Abhiyan students up to class eight have also been included in the scheme and therefore the respondents were finding it difficult to get the better result from the present Coordinators who are admittedly either assistant teacher or the head masters of the primary schools. It has been submitted by the respondents that after extension of the scheme up to the students of class eight, the practical difficulty which is being faced by the respondents is regarding proper implementation of the scheme. They submit that the petitioners may be having graduate or post graduate degree or B. Ed. or BTI in addition but merely on the basis of such'-degree they can not claim -,^il^ss^Wr-L-ie^;^^ /6- to be at par with the Upper Division Teacher or Shiksha Karmi Grade !1. So faras exclusion ofthe head master from appearing in the examination is concemed, it has been argued that work of Coordinator is as such that they are required to move within the Cluster of the Schoot and if the Head Master continues on the said post, It will adversely affect the functioning of the school. According to them, the Head Mastere are supposed to be stationed in the school itself so that they can take proper care of the school not only in the fleld of education but on the administrative side as well. 13. It has been further submitted by the counsel for the respondents that the teacher means the Upper Divfsion Teacher in the light ofthe letterdated 13.2.2009 (Annexure R-3/1) ofW.P. No. 2794/2009. Shri Bhaduri, Additional Advocate General has drawn the attention of this Court to the documents which show that the priority is givenito the teachers with the pay scale of Rs. 5000 - 8000 who are graduate or have completed BTI or B.Ed. course. He submits that pay scale of 5000-8000 is of Upper Division Teacher and not of the Assistant Teacher because the pay scate of Assistant