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2013 DIGILAW 1117 (JHR)

Moulishri Priya v. State of Jharkhand

2013-09-26

APARESH KUMAR SINGH

body2013
ORDER 1. Heard learned counsel for the parties. 2. These seven petitioners have been appointed on compassionate ground on account of death of their father/mother/husband by the decision of the District Establishment Committee, Koderma dated 10.9.2012 by office orders dated 20.9.2012 contained in Memo nos. 1334 and other memo numbers. The petitioners undisputedly fulfill the educational qualification of having the required qualifying marks in Intermediate. They have also joined the respective Primary Schools on different dates on the post of Primary Teacher as per Annexure2 series as per their submissions. 3. According to learned senior counsel appearing on behalf of the petitioners, the appointment of these petitioners have been made in view of the decision conveyed through memo no. 129 dated 16.1.2008 issued by the Secretary, Human Resources Development Department, Government of Jharkhand, which is at Annexure3. As per the said resolution, dependents of the employees of Education Department, dying in harness, were eligible for compassionate appointment as Assistant Teacher in Primary Schools in prerevised scale of Rs. 30504590. The said resolution also stipulates that upon their appointment, they were required to undergo compulsory training of two years in a Training Institute, approved by the National Council of Teachers' Education (for short 'N.C.T.E.') and to be posted in respective Primary Schools thereafter. The said resolution also stipulates that such incumbents should at least have a qualification of 45 per cent marks in Intermediate for the general category and 40 per cent marks for the scheduled caste and scheduled tribes category. In view of the aforesaid resolution, the Jharkhand Primary School Recruitment Rules, 2002 (for short the 'Rules, 2002') read with such amendments, introduced in 2002, 2003, 2006 and 2007 are amended accordingly. 4. It is contended on behalf of the petitioners that such appointments were made in accordance with the Rules, 2002, in vogue, as also the scheme for compassionate appointment, which is an exception to the general mode of recruitment upon consideration of all eligible candidates. The petitioners have also been recommended for training by Annexure7 dated 18.10.2002 issued by the District Superintendent of Education cum-Sub-Divisional Education Officer, Koderma. It is further submitted that thereafter appointments of these petitioners have been sought to be terminated by Annexure 9 dated 7.3.2013 contained in Memo no. 201 issued by the District Superintendent of Education cum-Sub-Divisional Education Officer, Koderma on the basis of decision taken by the District Compassionate Committee on 15.2.2013. It is further submitted that thereafter appointments of these petitioners have been sought to be terminated by Annexure 9 dated 7.3.2013 contained in Memo no. 201 issued by the District Superintendent of Education cum-Sub-Divisional Education Officer, Koderma on the basis of decision taken by the District Compassionate Committee on 15.2.2013. These petitioners are now going to be appointed as clerks in the District Collectorate as also in the Education Department, Government of Jharkhand against the vacant posts. Consequent to issuance of the aforesaid order at Annexure 9, the petitioners are aggrieved as their appointments are being terminated. Learned senior counsel appearing on behalf of the petitioners submits that the aforesaid circular contained at Annexure3 dated 16.1.2008 has been revoked much later after their appointments by a resolution contained in memo no. 945 dated 13.5.2013 issued by the Principal Secretary, Human Resources Development Department, Directorate of Primary Education, Government of Jharkhand. It is submitted that the sole ground to cancel the appointment of the petitioners as Assistant Teacher in the Primary Schools on compassionate ground is that they have not fulfilled the necessary eligibility criteria of having passed the Teacher's Eligibility Test, which is a mandatory requirement under the Right of Children to Free and Compulsory Education Act, 2009. However, it is further submitted that the petitioners at the relevant point of time fulfilled the necessary eligibility criteria as per Annexure3 and have been appointed on a particular post. However, on the basis of a decision taken on 13.5.2013, which has been brought on record as Annexure14 to the supplementary affidavit, their appointments cannot be cancelled. It is also stated that the appointment letters issued in favour of the petitioners itself stipulate that they were required to undergo mandatory two years' Teacher's Training Course in an approved Teacher's Training College/Institution. Learned counsel for the respondent State on the other hand has justified the issuance of the impugned order. It is contended on behalf of the respondents that the appointment to the post of Assistant Teacher in a Primary Schools is to be made on the basis of certain eligibility criteria, which have been prescribed after coming into force of the Right of Children to Free and Compulsory Education Act, 2009. The same were conveyed also vide letter dated 4.6.2012 by the Principal Secretary, Human Resources Development Department, Government of Jharkhand, addressed to the Director Jharkhand Education Project. The same were conveyed also vide letter dated 4.6.2012 by the Principal Secretary, Human Resources Development Department, Government of Jharkhand, addressed to the Director Jharkhand Education Project. However, a perusal of the said letter indicates that it was issued in context of appointment of Para Teachers and in relation to a notification dated 23.8.2010 of the N.C.T.E., which laid down a particular criteria for appointment of Assistant Teacher for class I to class VII. 7. Learned counsel for the respondents submits that the decision for appointment of these petitioners on compassionate ground as Assistant Teacher in the Primary Schools was taken on 10.9.2012. However, subsequently the District Compassionate Appointment Committee took into account the aforesaid communication of the Principal Secretary, Human Resources Development Department, Government of Jharkhand and thereafter revised its decision. It is submitted that though the appointment of the petitioners as Assistant Teacher in the Primary Schools have been cancelled, they are being appointed as clerks in the Collectorate and Education Department against the vacant posts. It is submitted that for appointment of Assistant Teacher, Teacher's Eligibility Test is a mandatory requirement without fulfilling which, the petitioners could not have been recommended and appointed as Assistant Teacher. The petitioners do not have a claim for appointment on a particular post under the compassionate ground. Therefore, the impugned order is justified and the petitioners in any case are not going to suffer because they are being appointed on the post of clerk as per the decision of the District Establishment Committee as contained at Annexure8. 8. I have heard learned counsel for the parties and have gone through the relevant materials on record as well as impugned order. 9. In the present case, the matter relating to compassionate appointment of these petitioners, on account of death of their father/mother/husband, were considered by the District Compassionate Appointment Committee on the basis of the resolution dated 16.1.2008 contained in memo no. 129 issued by the Secretary, Human Resources Development Department, Directorate of Primary Education, Government of Jharkhand. The said resolution as a matter of fact at Annexure3, stipulates certain conditions whereunder the dependents of the employees of Education Department, dying in harness, would be considered for appointment on compassionate ground as Assistant Teacher in the Primary Schools under State Government. 129 issued by the Secretary, Human Resources Development Department, Directorate of Primary Education, Government of Jharkhand. The said resolution as a matter of fact at Annexure3, stipulates certain conditions whereunder the dependents of the employees of Education Department, dying in harness, would be considered for appointment on compassionate ground as Assistant Teacher in the Primary Schools under State Government. The said resolution also stipulated that the appointed candidates have to undergo a mandatory Teacher's Training Course of two years in approved Teacher's Training College/Institution before their posting in the respective Primary Schools. The petitioners also claimed to fulfill the eligibility criteria of having the qualifying minimum marks in Intermediate as stipulated in the said resolution. As a matter of fact, the said resolution was in the nature of amendment to the Jharkhand Primary School Recruitment Rules, 2002 and its subsequent amendments carried out from time to time till 2007. 10. From perusal of the resolution, which has been brought on record at Annexure14 dated 13.5.2013 issued by the Principal Secretary, Human Resources Development Department, Directorate of Primary Education, Government of Jharkhand, it appears that the resolution of 16.1.2008, Annexure3, has been revoked by the said resolution of 13.5.2013. As such the resolution, which revoked the earlier resolution dated 16.1.2008, is prospectively applicable as there is no stipulation in the said resolution that it would apply to already concluded transactions with retrospective effect like in the instant case. As per the aforesaid resolution, the petitioners have not passed Teacher's Eligibility Test. There are no other grounds made out from the impugned order or the averments made in the counter affidavit for cancellation of their appointment as Assistant Teacher. 11. It, therefore, appears that the petitioners have been appointed on the basis of valid resolution contained at Annexure3 dated 16.1.2008 whereunder such appointment was permissible for dependents of the employees of Education Department who died in harness. The petitioners also appear to have been recommended for undergoing necessary Teacher's Training Course. In such circumstances, letter dated 4.6.2012, which has been brought on record in the counter affidavit filed on behalf of the respondents does not supersede the resolution dated 16.1.2008, which, in fact, was in the nature of amendment to the Primary Teacher's Training Rules, 2002. The petitioners also appear to have been recommended for undergoing necessary Teacher's Training Course. In such circumstances, letter dated 4.6.2012, which has been brought on record in the counter affidavit filed on behalf of the respondents does not supersede the resolution dated 16.1.2008, which, in fact, was in the nature of amendment to the Primary Teacher's Training Rules, 2002. In such circumstances, when the resolution dated 13.5.2013 is not retrospectively applicable to such concluded transactions, apparently there are no reasons for terminating the services of the petitioners on the ground that the petitioners have failed to fulfill the mandatory eligibility criteria of having qualified the Teacher's Training Eligibility Test. 12. In the totality of the facts and circumstances of the case and the reasons, discussed hereinabove, therefore, the impugned orders contained at Annexure8, which is a resolution of the District Compassionate Appointment Committee dated 18.2.2013 and on the basis of which Annexure 9 has been issued, do not appear to be based upon justifiable reasons and, therefore, can not be sustained in the eye of law. Therefore, the same are, accordingly, quashed. 13. Accordingly, this writ petition stands allowed. Petition allowed.