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2012 DIGILAW 1031 (JHR)

Sunil Kumar Singh v. State of Jharkhand

2012-07-23

D.N.UPADHYAY, PRAKASH TATIA

body2012
JUDGMENT By Court—Heard the Counsel for the parties and perused the records. 2. These two writ petitions have been filed by the petitioners to challenge the action of the Respondent-State by which the Respondent-State initiated process of selection and appointment of the teachers for +2 High Schools by issuing advertisement No.117/2011 dated 23/24.12.2011. 3. The petitioners have also challenged the instant resolution contained in memo No.12/no.201/20081470 dated 29th May, 2011 issued by the Principal Secretary to the Government, Secondary Education Directorate, Human Resources Development Department, Government of Jharkhand, Ranchi whereby and whereunder the Jharkhand Nationalized Secondary Schools (Conditions of Service) Rules, 2004 and the Jharkhand Nationalized Secondary School (Conditions of Service Amendments) Rules, 2008 have been amended. 4. According to the petitioner, the said notification is absolutely without jurisdiction, arbitrary and dehors the provision enshrined in the Jharkhand non-Government Secondary Education School (Management and taking over Control) Act, 2002. 5. The petitioners have also challenged the action taken in pursuance of the above referred resolution No.1470 including the results published by the Jharkhand Academic Council declaring list of the successful candidates. In addition to above, the petitioners sought quashing of the communication dated 5th July, 2011 whereby and whereunder in addition to other illegalities, the Respondent-State has committed illegality by providing reservation of 50% of the total post of Post Graduate Trained Teachers (P.G.T.) for in service teachers of the High schools. According to the petitioner, the said resolution is also contrary to the Rules of 2004. 6. Learned Counsel for the petitioner submitted that service condition of the teachers in the State of Jharkhand were earlier governed by the Bihar Non-Government Secondary School (Management and Taking over Control) Act, 1981 wherein Secondary Schools have been defined in clause Kha of Section 2. The power has been given by the Act, 1981 itself to frame the Rules. Section 9 of the Act provides that the teachers in the Secondary Schools shall be governed by the service conditions as prescribed by the State Government. However, by notification dated 14th November, 2002 the Act of 1981 was adopted by the State of Jharkhand with effect from 14th November, 2002 along with the Rules of 1993 framed under the Act of 1981. However, by notification dated 14th November, 2002 the Act of 1981 was adopted by the State of Jharkhand with effect from 14th November, 2002 along with the Rules of 1993 framed under the Act of 1981. By the same notification dated 14th November, 2002 under Section 9 clause 2 & 3 were also inserted whereby it has been provided that the appointment to the post of the Secondary School Teachers will be on the recommendation of the Jharkhand State Public Service Commission only. However, so far as appointment by way of promotion is concerned for that there will be no requirement of seeking recommendation from the J.P.S.C. Therefore, according to the amendment made by the State Government itself in the Act of 1981 by notification dated 14th November, 2002 no appointment can be given on the post of the teacher in the School for the secondary level unless there is recommendation of the Jharkhand Public Service Commission. In the year 2004 vide notification dated 5th November, 2004 the Rules were framed exercising the power under Section 9 (1) of the Act, 2002 (Original Act, 1981 as adopted by the State of Jharkhand). In the Rules 2004 also it is specifically provided under Rule 7 (5) that 74% of the post of teacher will be offered to the general public and 25% of the post shall be kept reserved for the in service teachers and 1% will be for the promotion from the post of Lower Divisional Clerk. It is also provided under sub-clause (ii) of sub-rule (5) of Rule 7, for direct recruitment, that the Jharkhand Public Service Commission will take written examination and thereafter, a merit list will be prepared. It will be relevant to mention that one another notification was issued in the year 2008 amending certain provision of the Rules of 2004 but that notification has no relevance for our purpose and it has not affected the selection process of the teachers which is in question. 7. Learned Counsel for the petitioner further submitted that in contravention to the Act and the Rules the State Government has taken resolution dated 29th May, 2011 whereby it, in fact, sought to amend Rules of 2004 and 2008 and it has been provided that in place of “Jharkhand Public Service Commission” it may be read as “Jharkhand Public Service Commission or any authority authorized by the State Government”. It is submitted that said notification was issued by the Principal Secretary to the Government, Human Resources Development Department under which the Madhyamik Education falls. It is also submitted that yet another notification was issued on 30th September, 2011 by the State Government whereby also it has been provided that the examinations of the teachers selection will be taken by either the Jharkhand Public Service Commission or by the authority authorized by the State Government. However, according to the learned Counsel for the petitioner by this notification, the clause has been inserted as clause 4.3Ga after the clause 4.3kha in the Rules, 2004. By this notification the authority could not have amended the Rules and therefore, it is wholly without jurisdiction. Be that as it may be, in contravention of the Rules and Regulations, the post of 1840 teachers of different subjects was notified vide notification No. 117 dated 23/24.12.2011. 8. According to the learned Counsel for the appellant since the selection process is in contravention of the Act and the Rules as well as it has provided absolutely unreasonable ratio of the teacher for appointment which is apparent from the facts of the case that 50% of the total posts have been reserved for in service teachers whereas 1840 posts were advertised and only 817 in service candidates applied against the 920 post and therefore, by this mode the State Government has even gave the more number of seats than available candidates for in service teachers. Because of this reason any candidate, who secured 150 marks out of 300 marks in the category in service teachers, he got appointment. In contrast in open market only 920 seats were offered and there is cutoff mark 226 against cutoff 150 marks of the in service candidates. It is further submitted that reservation of 50% is contrary to the Rule as stated above. 9. Learned Counsel for the State submitted that in view of the national policy of having 10+2+3 Education System in the State of Jharkhand a policy decision was taken and in consonance with the policy decision, the above orders dated 29th May, 2011 and 30th September, 2011 as well as communication dated 5th July, 2011 were issued. It is submitted that earlier before concept of the 10+2+3 Education System in the entire State of Bihar, there were educational system consisting of the Primary School teaching and Secondary school teaching. It is submitted that earlier before concept of the 10+2+3 Education System in the entire State of Bihar, there were educational system consisting of the Primary School teaching and Secondary school teaching. Secondary School teaching was upto 10th standard. For 11th student, the course was known as intermediate courses and for this intermediate, certificate could have been issued not by the School or Board but by the University. This system should have been changed long back by the State of Bihar before its bifurcation as the Bihar State in view of the national policy and for which a decision was taken in the State of Bihar as back as at least on 23rd November, 1974 when a resolution was passed by the State Government being No.2/4830 where in clause No.9 it has been provided that to begin with +2 courses from July, 1979, it is decided that some Guidelines be issued but no required steps were taken. However, in the State of Jharkhand there were only 59 +2 schools running and therefore it was decided vide order dated 16th August, 2007 to upgraded 171 middle schools to the + 2 High Schools. For this purpose certain posts were also sanctioned which is apparent from Annexure11 annexed by the petitioner along with the second supplementary affidavit. 10. In view of the above submissions, learned Counsel for the State submitted that some confusion may have been created because of mixing of the issues with respect to the selection and appointment on the posts of +2 teacher and mentioning all the facts relating to the Rules of 2004 and 2008 in this notification. It is submitted that the State Government has followed the policy as prescribed by the N.C.T.E. and also took help from the other educational institutions for prescribing the conditions of the selections for +2 teachers. Therefore, the present process of selection is not governed by provisions of Act of 1981 or of Rules 2004 or Rules 2008 and it is governed by the policy decision of the State Government dated 5th July, 2011. It is apparent from the advertisement itself that the advertisement was issued in complete consonance with the policy decision of the State Government dated 5th July, 2011. 11. It is apparent from the advertisement itself that the advertisement was issued in complete consonance with the policy decision of the State Government dated 5th July, 2011. 11. Learned Counsel for the writ petitioner in rejoinder vehemently submitted that the stand which has been taken by the State Government in course of argument is not the stand taken by the State Government in reply and, therefore, arguments cannot be said to be in consonance with the written reply filed by the State Government. It is also submitted that none of the allegations levelled by the writ petitioner has been controverted and, therefore, all allegations or contentions raised by the writ petitioner may be treated to be admitted by the State Government. 12. Learned Counsel for the Jharkhand Academic Council submitted that they are bound to follow the instructions of the State Government and they followed the instructions as given in communication dated 5th July, 2011 and they have complied all conditions of the said communication dated 5th July, 2011. 13. We have considered the submission of the respective parties and perused the facts of the case as well as all relevant documents placed on record by both the parties. No doubt in the State of Bihar out of which the Jharkhand State has been carved out, the Act was enacted as back as in the year 1981 and as per the notification of the Government of Bihar itself, it is clear that +2 system was introduced in the year 1979 in the State of Bihar but from the notification dated 23rd December, 1976 it is clear from the clause 9 that there was further decision that for experimental basis this +2 course will be started and for this purpose the decision shall be taken from time to time. However, even after taking decision as early as in the year 1976 it appears that no separate instructions were issued for recruitment of +2 teachers. In the State of Jharkhand only in the year 2007 substantial number of the schools were upgraded from middle to +2 High School and thereafter, by notification dated 29th May, 2011 a resolution dated 29th May, 2011 was taken. In the State of Jharkhand only in the year 2007 substantial number of the schools were upgraded from middle to +2 High School and thereafter, by notification dated 29th May, 2011 a resolution dated 29th May, 2011 was taken. It has been provided for middle school teachers and +2 teachers, the power may be given to any other authority of the State Government in addition to the Jharkhand Public Service Commission to conduct selection and complete the selection and recruitment process to the post of teachers. In the notification dated 29th May, 2011, it is mentioned that in the Rules of 2004 and 2008 there is a mention of the “Jharkhand Public Service Commission” it may be read as “Jharkhand Public Service Commission or any of the State authority authorized by the State Government”. This resolution has been created a serious confusion which will be apparent from yet another notification dated 31st September, 2011 whereby Rule 4.3Ga has been inserted after Rule 4.3Kha in the Rules 2004 whereby also the same provision has been provided and its purpose to amend Rules 2004. This notification also created further confusion because Rule 4.3Ga has been inserted in Rule 4.3Kha of the Rules, 2004 which is a provision for giving appointment to the teachers on the post of regional languages or ancient languages and not a provision for the post for recruitment of the general teachers or +2 teachers for + 2 schools. 14. Thereafter, a decision was taken on 5th July, 2011 which also has reference of the resolution No.1470 and by this communication the complete conditions of service of the teachers of +2 schools have been prescribed. It has also prescribed that appointing authority shall be the Director of the Secondary Education Board. The salary also prescribed by clause 2 for such teachers having the grade pay of Rs. 9300-34800/- and with grade pay of Rs.4800/-. The clause 3 of this communication has prescribed the allocation of seats which is under challenge as by this clause 3, 50% of the post of the teachers have been reserved for the in the service teachers and 50% are to be offered in open market. In sub-clause (2) of clause 3 of the communication dated 5th July, 2007 it is mentioned that what shall be required eligibility for any candidate for seeking appointment on the post of +2 post teachers. In sub-clause (2) of clause 3 of the communication dated 5th July, 2007 it is mentioned that what shall be required eligibility for any candidate for seeking appointment on the post of +2 post teachers. It requires that one should have the certificate of the B.Ed course or equivalent from the institute recognized by the N.C.T.E. and if such degree has been obtained prior to 17th August, 1995 from concerned State or University recognized by the University Grants Commission then that will be an eligible degree. This degree of B.Ed also requires in addition to post graduate degree with 50% of the marks. A separate resolution has been provided under sub clause (3) of clause 3 of the said communication. Separate marking pattern has been given in clause 4 of the said decision. The clause 5 provides for preparation of the merit list and reservation is given in clause 6 of the policy. This policy is also under challenge. However, we are of the considered opinion that in notifications dated 29th May, 2011 which are two in number issued as 1469 dated 29th May, 2011 and 1470 dated 29th May, 2011 as well as in the notification dated 30th September, 2011, where therein reference of the Rules of 2004 and 2008 but this reference may be easily segregated because of the reason that at the time of Act of 1981 there was no provision made in the Act of 1981 so as to indicate separately that there will be a +2 course in future. The decision of the State Government since is supported by not only oral arguments but by documents, therefore, we are of the considered opinion that once a policy decision has been taken by the State Government for providing a complete and separate procedure for appointment to the post of the teachers in +2 school then that cannot be said to be contrary to any Rules and Regulations as it is a separable issue and it has been started as per the policy decision of the State Government and this is not a new idea which just cropped up, but this decision should have been taken long back years ago as the decision was taken when even the area of the State of Jharkhand was within the territory of State of Bihar and at that time also the decision was taken that separate instructions will be issued for the purpose of giving appointment for the post of teachers for +2 Schools. 15. Learned Counsel for the petitioners submitted that State’s stand that post of +2 teachers is not governed under the middle school is contrary to other notifications which have been issued by none else but by the Department of the Secondary Education. Which Department will be the governing authority and which of the Department will be the appointing authority may not have been any relevance for the purposes of this subject because of the simple reason that it is a discretion of the State to assign the work of given appointment on the particular post to a particular authority and if it is not in conflict with any Rule or law. The making of the Director, Secondary Education as appointing authority will not make two posts which can be easily separated as one post for the purpose of appointment. 16. As we have already noticed that courses upto 10th standard in the school was specific, defined and was running since long. The concept of +2 teachers came subsequently and implemented in the State of Jharkhand very belatedly therefore, confusion may have been created because of the certain inclusion of the provisions in the notification referred above. 17. In view of the above reasons of State policy decision, we are of the considered opinion that there is no merit in the writ petition. Accordingly, the writ petition is dismissed. The connected writ is also dismissed. 18. 17. In view of the above reasons of State policy decision, we are of the considered opinion that there is no merit in the writ petition. Accordingly, the writ petition is dismissed. The connected writ is also dismissed. 18. In view of the above reasons, the L.P.A. No.198 of 2012 also stands dismissed.