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2010 DIGILAW 880 (JHR)

Fr. Brice Bilung v. State of Jharkhand

2010-09-08

AMARESHWAR SAHAY

body2010
Order Heard the parties. 2. The prayer of the petitioner is to direct the respondents to approve his pay scale in BA trained, i.e. the scale of Rs.2,000-3.500/-. 3. The case of the petitioner is that he is working on the post of Headmaster in R.C. Balak Middle School, Nawadih in the District of Gumla, which is a non-Government aided minority institution and was recognized by the State Government in year 1978. The State Government pays the salaries of the teachers, who are working in non-Government aided minority institutions against sanctioned posts. Altogether 10 posts are sanctioned in the school in question. Vide Annexure-2, i.e. a resolution of the Managing Committee of the School, the petitioner was appointed as the Headmaster of the said school w.e.f. 1.1.2000, which fell vacant due to resignation of the Headmaster of the School namely Fr. Chonhas Kinclo (S.J.). Further case of the petitioner is that the District Superintendent of Education, Gumla, by issue of an Office order contained in memo no. 218 dated 1.2.2001 (Annexure-3) approved his appointment in B.A. trained scale of Rs.2,000-3,500/w.e.f. 1.1.2000. In the said office order (Annexure-3) it was mentioned that after approval of fixation of pay by the Director of the Primary Education, salary would be payable to the petitioner. 4. The grievance of the petitioner is that though h~ is regularly discharging his duty on the post of Headmaster from 1.1.2000 but till date the Director, Primary Education (Respondent No.2) has not ratified the approval of the District Superintendent of Education due to which the petitioner is being paid only a provisional salary and in spite of repeated representation made by him in this regard but his grievance has not yet been redressed. 5. The learned counsel appearing for the petitioner by drawing my attention to an order passed by a Single Bench of this Court on 28.4.2009 in W.P.S. No. 1179/2008, contained in Annexure-6 to the supplementary affidavit-cum-rejoinder submitted, that in almost a similar case this Court after taking into consideration of a notification issued by the Government dated 24.12.1999 held that the requirement of prior advertisement for filling up the vacant post of teacher has been waved in the case of Missionary Institutions. 6. It appears that the respondent no. 2 by filing counter affidavit, has contested the claim of the petitioner on the ground that as per the Government's guideline issued vide letter no. 6. It appears that the respondent no. 2 by filing counter affidavit, has contested the claim of the petitioner on the ground that as per the Government's guideline issued vide letter no. 709 dated 4.3.1993, the Managing Committee of the School was required to make appointment on the basis of seniority• in the panel prepared after inviting applications through advertisement but the Managing Committee of the School in question did not follow the procedure of appointment and no advertisement was issued and, therefore, the appointment of the petitioner as Headmaster is illegal. 7. From the pleadings of the parties, there appears no dispute of the fact~ that the School in question is a Government aided minority (Catholic) School, which has been recognized by the State Government as Government aided minority institution and the School gets its financial aids for the purpose of payment of salaries for its teaching and non-teaching employees from the State Government. It is also not disputed that the Managing Committee of the School in question in its meeting dated 20.12.1999, contained in Annexure-2, resolved to appoint the petitioner to the post of Headmaster of the School w.e.f. 1.1.2000 and, accordingly, the petitioner was appointed on the post of Headmaster. His appointment to the said post and fixation of his pay scale was approved by the District Superintendent of Education, Gumla, contained in Annexure-3, but such approval by the District Superintendent of Education was subject to final approval of the Director, Primary Education of the State Government. . 8. From perusal of the order passed by a Bench of this Court in WPS No. 179/ 2008, contained in Annexure-6, it appears that in the said case also it was argued on behalf of the respondent State that in view of the letter of the Government contained in memo no. 709 dated 1.3.1993, it was obligatory on the part of the Managing Committee to invite the representatives of the Government, i.e. Area Education Officer and the Block Extension Officer to attend the interview in which the appointments were made and finalized and further it , 'as obligatory on the part of the Managing Committee of the School to publish advertisement inviting applications for appointment to the post of Headmaster. The learned Single Judge, on consideration of the letter of the State Government contained in memo no. The learned Single Judge, on consideration of the letter of the State Government contained in memo no. 709 dated 1.3.1993 as well as the subsequent letter of the State Government contained in memo no. 2437 dated 24.12.1999 (Annexure-5) held that the subsequent circular issued in 1999 has apparently an effect of making an exception to the general rule as contained in Government earlier circular of 1993 and it was not obligatory on the part of the Managing Committee of the School in which the petitioner claims to have been appointed, either to issue any prior advertisement to fill up the post to which the petitioner was appointed or to invite any of Government representatives in the meeting of the Managing Committee where the decision to appoint the petitioner was taken. 9. Therefore, it appears that the facts of the present case are similar to the case of W.P.S. No. 1179 of 2008, the judgment of which was pronounced on 28.4.2009, contained in Annexure-6 to the supplementary affidavit and, therefore, relying on the said decision of this Court, I hold that, the petitioner is also entitled to the same relief, which has beer granted in the aforesaid case. 10. Accordingly, this writ petition is allowed. The respondent no. 2 Director, Primary Education, Ranchi is directed to pass an appropriate order in accordance with law approving the BA Trained scale to the petitioner as was fixed by the Managing Committee and approved by the District Superintendent of Education, Gumla, and, thereafter, the arrears of salary, which is due to the petitioner, be paid within a period of four weeks from the date of receipt/production of a copy of this order. The petitioner shall also be paid his regular salary on month to month basis. However, in the acts and circumstances of the case, there shall be no order as to cost.