Pankaj Kumar Dubey vs State of U.P. and Others

The present special appeal has been filed against the interim order dated 8th July, 2011 passed by the learned Single Judge whereby the operation of the order dated 29th April, 2011 passed by the District Magistrate, Allahabad(filed as annexure No. 12 to the writ petition) has been stayed while granting time to the parties to exchange their affidavits.

We have heard Sri S.P. Srivastava, Learned Counsel for the Appellant, Sri S.K. Pandey, who represents Respondent No. 6, learned Standing Counsel, who represents Respondent Nos. 1 and 2, Sri Chandra Narayan Tripathi, who represents Respondent Nos. 3 and 7 and Sri D.D. Chauhan, who represents Respondent Nos. 4 and 5 and have perused the impugned order dated 8th July, 2011 passed by the learned Single Judge giving rise to the present appeal, the grounds of memo of appeal and the documents filed along with it.

We may mention here that along with memo of appeal the Appellant has filed various documents which were not part of the record before the learned Single Judge when the impugned order dated 8th July, 2011 had been passed. We are, therefore, confining the appeal only to the writ petition which was before the learned Single Judge at the time of passing of the said order and are not going into the various documents filed by the Appellant along with appeal.

Learned Counsel for the Appellant submitted that on the basis of the documents filed along with the writ petition, learned Single Judge ought not to have stayed the operation of the order dated 29th April, 2011 passed by the District Magistrate, Allahabad. According to him the learned Single Judge should have passed a reasoned order as Respondent No. 6 has failed to establish that she is resident of village Ghoori Tarhar or wants to reside therein. Learned Counsel for the Appellant referred to the order dated 29th April, 2011 passed by the District Magistrate, Allahabad in a great detail and submitted that as the Respondent No. 6 has failed to establish this factum of residing in the said village and instead of it is a resident of Jamalmau, district Pratapgarh she cannot be permitted to continue as a Shiksha Mitra in village Ghoori Tarhar, district Allahabad. We may mention here that the District Magistrate had passed the impugned order dated 29th April, 2011 pursuant to the judgment and order dated 23rd September, 2010 passed by a Division Bench of this Court in Special Appeal Defective No. 581 of 2005, Smt. Vandana Devi v. State of U.P. and Ors. The Division Bench while allowing the appeal in the operative portion of the order has directed as follows:

For the aforesaid reasons, we allow the Special Appeal, set aside the judgment of learned Single Judge and the order of the District Magistrate dated 19.03.2005. Smt. Vandana Devi, selected and appointed in the year 2000-01 shall be allowed and continue to serve as Shiksha Mitra in the Village. It will be open to the District Magistrate to give her notice, and allow Shri Rajneesh to prove that she is not living the village. Even if Shri Rajneesh Kumar establishes that she is living in the village of her husband, she will be given a choice, to live in the village of her parents and continue to serve as Shiskha Mitra in the School. Her choice, will be subject to the satisfaction of the District Magistrate.

The special appeal is allowed.

From a perusal of the order impugned in the writ petition the District Magistrate has not taken into consideration that even if Smt. Vandana Devi is residing in another village she be given a choice to live in the village of her parents and continue to serve as Shiksha Mitra which of course subject to the satisfaction of the District Magistrate. The District Magistrate having been failed to give choice to Smt. Vandana Devi as directed by this Court in its judgment and order dated 23rd September, 2010 we are of the considered opinion that the order passed by the District Magistrate, Allahabad dated 29th April, 2011 cannot be sustained and is hereby set aside. The District Magistrate is directed to pass a fresh order strictly in the light of the directions contained in the judgment and order dated 23rd September, 2010 within one month from the date a certified copy of this order is filed before him after giving opportunity of hearing to all concerned. The parties will be at liberty to give evidence regarding actual residence of Smt. Vandana Devi. Till then the direction given in the order dated 23rd September, 2010 that Smt. Vandan Devi shall be allowed to continue to serve as Shiksha Mitra in village Ghoori, Tarhar will remain in operation.

As we have already set aside the order dated 29th April, 2011 passed by the District Magistrate, Allahabad, which has been impugned in the writ petition no useful purpose will be served by keeping the writ petition pending. The writ petition is, therefore, allowed and the special appeal stands disposed of.

Disposed of.

For order see order of date passed on the separate sheets.

Allowed.

For order see order of date passed on the separate sheets in Special Appeal No.1783 of 2011.