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Jharkhand High Court · body

2009 DIGILAW 1096 (JHR)

Anjali Roy v. State of Jharkhand

2009-08-10

D.G.R.PATNAIK

body2009
Judgment Heard the counsel for the petitioner and the learned counsel for the respondents. 2 The petitioner in this writ petition has prayed for quashing of the order dated 7.11.2006 ( annexure 5) issued by the District Education Officer, Hazaribagh, and the letter dated 22.12.2006 Annexure6) issued by the Secretary of the Annada High School, Hazaribagh, whereby the petitioner’s appointment as an Assistant teacher in the school has been cancelled. Further prayer has been made for direction to the respondents to post the petitioner as Assistant Teacher in History with effect from 22.12.2006 and to allow her to continue on the said post and to pay her regular salary. 3 In response to an advertisement ( annexure 1) issued by the Secretary, Annada High School, Hazaribagh on 1.6.2004, inviting applications from eligible candidates for their appointment as Trained Graduate Teachers in History, the petitioner had submitted her candidature. Her application was considered and thereafter she was granted appointment on probation after which she was confirmed by the Managing Committee of the School. However, by the impugned order, the petitioner was informed that her appointment was cancelled on the ground that she did not possess the minimum 50% marks at the Graduation level which was an essential requirement by way of eligibility for appointment as Assistant Teacher. 4 The petitioner has assailed the order of cancellation of her appointment on the ground that no such criteria relating to minimum percentage of marks at the Graduation level was mentioned in the advertisement and furthermore, the purported ground which was introduced for the first time by the Government notification published in the official Gazette in the month of November, 2004 cannot be made applicable retrospectively. Her further ground is that before cancelling her appointment, the concerned authority of the respondent never issued any prior notice, or had given any opportunity to the petitioner of being heard. Counter affidavit has been filed on behalf of the respondent no.4, namely, the Secretary of the School. The stand taken by the respondent is that though the petitioner’s application was considered, and she was granted appointment, but her appointment was made on probation with a clear understanding that her appointment was subject to the final approval by the concerned authority of the State Government. The stand taken by the respondent is that though the petitioner’s application was considered, and she was granted appointment, but her appointment was made on probation with a clear understanding that her appointment was subject to the final approval by the concerned authority of the State Government. Further stand of the respondents is that under the Government Circular (Annexure B to the counter affidavit), the minimum qualification for appointment as Assistant Teacher is that the candidate should possess minimum 50% marks at the graduation level. The petitioner did not possess the requisite percentage of marks and therefore her appointment which was made conditional, had to be cancelled. 6. Undisputedly, it appears that in the advertisement published on 1.6.2004, there was no stipulation regarding minimum percentage of marks by way of eligibility criteria and the only qualification indicated therein was that the candidate should be a Trained Graduate for appointment as Teacher in the subject of History ( Social Science) and that the candidate should be capable of teaching both in Bangla and Hindi medium. Admittedly, on the relevant date, there was no rule or Government Circular by which any other eligibility criteria including the requirement of minimum percentage of marks at the graduation level was stipulated. It further appears that admittedly, after the petitioner had completed the period of her probation, the same Managing Committee had confirmed her services with effect from 1.8.2004 and had communicated the order of confirmation by annexure 4 to the petitioner. Yet, the order of cancellation of appointment of the petitioner was passed on 1.3.2005 even though the purported notification stipulating the minimum eligibility criteria was published in the official gazette in the month of November, 2004. It also appears that before cancelling the appointment of the petitioner, she was not given any notice or an opportunity to explain as to why her appointment should not be cancelled. Further more, even the notification ( annexure B to the counter affidavit ) declares that the Rules contained therein would be made applicable prospectively from the date of publication in the official gazette. The petitioner’s appointment was made earlier on 1.8.2004 and at that time there was no stipulation fixing the minimum percentage of marks at the graduation level as an eligibility criteria. The petitioner’s appointment could not therefore be cancelled by applying the Rule retrospectively. The petitioner’s appointment was made earlier on 1.8.2004 and at that time there was no stipulation fixing the minimum percentage of marks at the graduation level as an eligibility criteria. The petitioner’s appointment could not therefore be cancelled by applying the Rule retrospectively. Furthermore, in absence of any notice or an opportunity of hearing to the petitioner, the respondents have apparently violated the principles of natural justice. Under such circumstances, the petitioner has raised a genuine grievance Accordingly, this writ petition is allowed and the impugned orders are hereby set aside. The respondents are directed to consider the petitioner’s case in the light of the facts stated above including the fact that at the time of her appointment, there was no rule requiring candidates to possess minimum percentage of marks at graduation level and also in view of the fact that the petitioner’s probation was confirmed by the Committee notwithstanding the notification issued and also in view of the fact that the petitioner did possess the requisite qualification as demanded in the original advertisement issued by the respondent School and to re-consider the case of the petitioner and take an appropriate decision within three months from the date of receipt/production of a copy of this order and in case, on the basis of the qualifications which the petitioner had possessed corresponding to the requirements stipulated in the original advertisement, the respondents shall accept her in service on the same post, if the petitioner is found otherwise entitled. Let a copy of this order be given to the learned counsel for the respondents.