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2012 DIGILAW 162 (JHR)

Birendra Kumar Mishra v. State of Jharkhand

2012-02-01

P.P.BHATT, PRAKASH TATIA

body2012
Judgment P.P. BHATT Heard learned counsel for the parties. The petitioner is aggrieved because of the reason that order of this Court dated 15.1.2009 passed in L.P.A. No.532 of 2005, has not been complied with in spite of the fact that according to the learned counsel for the petitioner, a Division Bench of this Court categorically recorded finding that the certificate obtained by the writ petitioner from the National Institute of Mentally Handicapped, Secunderabad is a certificate of imparting teachers training course and the Division Bench clearly held that in view of the stand of respondent no.7 and in view of the general definition of trained candidates even in Rule 2(Kha) of the Rules, which does not debar the trained candidate like the appellant, the State Government is directed to take a decision whether the appellant can be treated as the trained candidate under Rule 2(Kha) of the Rules, amounts to declaration that the certificate which petitioner obtained is equivalent qualification course as prescribed in Rule 2(Kha). In spite of this clear finding, the Secretary of the Department has rejected the petitioner's prayer for giving appointment vide order dated 19.5.2010. It appears that the dispute was with respect to the equivalence of the course and the issue was whether a certificate given by the National Institute for Mentally Handicapped (in short N.I.M.H.) is a course equivalent to the qualification prescribed by the employers or the State Government in Rule 2(Kha). We would like to quote para-9 and 10 of the affidavit of respondent no.7, which have been relied upon by the learned counsel for the petitioner and which are as under: “9. I further say and submit that the competency of such educators to go for normal streams should be considered more fruitful because in any case if there is any disabled child in the class then it won't be difficult to handle that child. Under the policy of Govt. “Sarva Shiksha Abhiyan”, it is required that the special educator should be appointed in every primary school to achieve the target of the Govt, “Education for all”. 10. It is pertinent to mention here that some of the States have already declared the special educators at par with the teachers in general category. In this mater, petitioner is a well qualified candidate as he succeeded in primary teachers recruitment test and his name was recommended for appointment as primary teacher. 10. It is pertinent to mention here that some of the States have already declared the special educators at par with the teachers in general category. In this mater, petitioner is a well qualified candidate as he succeeded in primary teachers recruitment test and his name was recommended for appointment as primary teacher. Hence, there is no doubt about his competency and the concerned authority must give him an opportunity to prove his caliber”. Learned counsel for the petitioner relied upon the earlier judgment of this Court delivered in the case of Dilip Kumar Mahto, reported in 2005 (2) JCR 293 (Jhr). It is a settled law that equivalence of the course is required to be judged by the competent authority of expert, obviously and normally, by the employer and for that purpose very many facts are required to be taken into account. If there is a dispute and there is allegation of an arbitrary decision on non-recognition of one of the course even when it qualifies to be equivalent to other course already accepted by the employer/State Government then the Court may give it's verdict on the basis of material which may be placed on record by the parties. If there is a dispute and there is allegation of an arbitrary decision on non-recognition of one of the course even when it qualifies to be equivalent to other course already accepted by the employer/State Government then the Court may give it's verdict on the basis of material which may be placed on record by the parties. Here in this case, it appears that the petitioner obtained a certificate Diploma in Mental Retardation, one year course and the Division Bench in para-9 and 10 considered the stand taken by the respondent no.7, who was non else than the Institute who gave the certificate to the writ petitioner and therefore, it appears that the Division Bench mainly observed in the following lines : “It further appears that the candidates obtaining training from N.I.M.H., can teach the general students also as the Council has developed the programme in such a way that these special educators are trained in all aspects so that they could handle the disabled children as well as general children.” Therefore, it appears from the paras-9 and 10 that stand taken by the respondent no.7, who is interested party, obviously in favour of the petitioner, was accepted as a plea for consideration by the competent authority and i.e., the State Government and therefore, ultimately a direction was given by the Division Bench is “----------------the State Government is directed to take a decision whether the appellant can be treated as the trained candidate under Rule 2(Kha) of the Rules.” In the facts and circumstances of the case, in a contempt jurisdiction, we can not hold the complete enquiry with respect to the courses and the trainings, which have been obtained by the writ petitioners and once the State Government has taken a decision, though through the Secretary of the Department of the State Government, the proper course is to challenge that order for obtaining a decision in the matter by placing materials on record so that the proper declaration can be granted, which cannot be granted in a contempt jurisdiction. We are unable to find out the decision taken by the State can be with intention to flout the direction issued by this Court and at the same time, we are of the considered opinion that the contempt petitioner is not remedyless and the proper remedy is to challenge the order which has been passed by the State Government after decision of this Court. With this observation, this contempt petition is disposed of and notices are discharged.