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2013 DIGILAW 1350 (JHR)

Moinuddin v. State of Jharkhand

2013-12-12

SHREE CHANDRASHEKHAR

body2013
ORDER Seeking quashing of order dated 06.09.2002 and 06.12.2002, the petitioner has approached this Court. 2. The brief facts as narrated in the writ petition are that, in January, 1993 an advertisement was issued for filling up two posts of teachers in Matric-trained scale in the Urdu Town Middle School, Chakradharpur. The petitioner submitted his application and he was selected for appointment on the post of Assistant Teacher. The Urdu Town Middle School is a minority institution and the appointment letter dated 20.02.1993 was issued by the then Secretary of the Managing Committee of the School. The petitioner has qualification of Bachelor of Arts and he has acquired Dip.-Ed. also. By order dated 01.07.1994, the District Superintendent of Education, Singhbhum West, Chaibasa provisionally approved the appointment of the petitioner w.e.f. 04.03.1993. The petitioner was paid salary in the scale of Matric-trained, i.e. Rs 580-860 regularly. By letter dated 16.03.1999, the District Superintendent of Education directed the Secretary of all the primary and middle school to submit details with respect to sanctioned posts and teachers working in the minority institutes. In Urdu Town Middle School 10 posts of teachers were sanctioned and there were 9 teachers including the petitioner, working in the school. 3. On 27.08.1998 a proposition statement was sent by the District Superintendent of Education to the Director, Primary Education for approval of the pay-scale of the teachers working on the sanctioned post. The proposition statement of the petitioner was not approved and it was kept pending and his salary was stopped and therefore, the petitioner moved the High Court in CWJC No. 278 of 1999 (R), which was disposed of on 15.12.2000 with a direction to the District Superintendent of Education to pass a reasoned order and with a further direction to pay the admitted salary to the petitioner, if found due, within one month. Since the order of the Court was not complied with, the petitioner was constrained to prefer a Contempt Petition being MJC No. 286 of 2001. During the pendency of the contempt petition, order dated 22.02.2001 was passed rejecting the claim of the petitioner. The petitioner moved this Court by filing WP(S) No. 2349 of 2001 challenging order dated 22.02.2001, which was disposed of by order dated 07.03.2002 with a direction to the respondents to obtain necessary approval of the proposition statement. During the pendency of the contempt petition, order dated 22.02.2001 was passed rejecting the claim of the petitioner. The petitioner moved this Court by filing WP(S) No. 2349 of 2001 challenging order dated 22.02.2001, which was disposed of by order dated 07.03.2002 with a direction to the respondents to obtain necessary approval of the proposition statement. The petitioner again moved this Court by filing Contempt (Civil) No. 467 of 2002. By order dated 06.09.2002 the proposition statement of the petitioner was rejected on the ground that only one post of B.A. trained teacher and one post for Inter-trained teacher were sanctioned, whereas in the advertisement issued in January, 1993 one post of teacher in Scout, Sports and Drill was advertised by the School for which no sanction was accorded by the Government. The petitioner was neither Matric-trained at the time of his appointment nor there was a vacant post for Matric-trained teacher. The order dated 06.09.2002 has been challenged in the present proceeding. By order dated 09.09.2003, the respondents were restrained from terminating the service of the petitioner without prior permission of the Court. 4. A counter-affidavit has been filed stating as under :- 5. “That with regard to the statement made in paragraph-1 of the writ petition, it is stated that the prayer made in para-1 of the writ petition is not maintainable, since the impugned order dated 06.09.2002 passed by Respondent no.2 is well reasoned order and there is no illegality in the same in view of the fact that two units of posts are for B.A. trained teacher and another Intermediate trained teacher has been sanctioned by the Additional Director, Human Resources Development, Branch Secretariate, Ranchi but the Secretary of the said School published vacancy for the post of Scout, Sports and Drill teacher and appointed the petitioner without any valid sanctioned post and as such the petitioner is not entitled for any relief and the present writ application is fit to be dismissed.” 5. Heard learned counsel appearing for the parties and perused the documents on record. 6. Mrs. M.M.Pal, the learned Senior counsel appearing for the petitioner has submitted that, since the petitioner was appointed pursuant to selection done by the Managing Committee of the School and his appointment has been approved by the District Superintendent of Education, by order dated 06.09.2002 the respondents have illegally rejected the proposition statement of the petitioner. 6. Mrs. M.M.Pal, the learned Senior counsel appearing for the petitioner has submitted that, since the petitioner was appointed pursuant to selection done by the Managing Committee of the School and his appointment has been approved by the District Superintendent of Education, by order dated 06.09.2002 the respondents have illegally rejected the proposition statement of the petitioner. The learned Senior counsel has further submitted that since the petitioner has continued for more than 20 years and pursuant to the order passed by this Court he has been paid salary though not in the revised pay scale, the proposition statement of the petitioner could not have been rejected on the plea that there was no sanctioned post for Scout, Sports and Drill teacher. The post of Physical Instructor is equivalent to the post of Assistant Teacher and the petitioner who is graduate is duly qualified for being appointed on the post of Assistant Teacher. She has further submitted that though letters were written to the respondent-authority for sending the petitioner for training, for unknown reasons the petitioner was not sent for training and therefore, it is not open to the respondent-authority to take the plea that, the petitioner was not duly qualified. The learned Senior counsel for the petitioner has relied on decisions reported in 2001 (2) BLJR 807, 2002 (2) PLJR 112, 2002 (3) JCR 61 , AIR 2001 SC 706 , AIR 1996 SC 302 . 7. As against the above, Mr. Ram Prakash Shekhar, the learned counsel appearing for the State of Jharkhand has submitted that since the initial appointment of the petitioner was itself illegal, the proposition statement of the petitioner has rightly been rejected. The learned counsel has further submitted that the petitioner was not even possessing the minimum qualification for being appointment on the post of Assistant Teacher and therefore, his appointment by the then Secretary of the Managing Committee of the School was illegal. Relying on the decision of the Hon'ble Supreme Court, reported in (2006) 5 SCC 493 , (2009) 15 SCC 436 , (2010) 10 SCC 63 , (2008) 7 SCC 153 , (2010) 2 SCC 728 , Mr. Relying on the decision of the Hon'ble Supreme Court, reported in (2006) 5 SCC 493 , (2009) 15 SCC 436 , (2010) 10 SCC 63 , (2008) 7 SCC 153 , (2010) 2 SCC 728 , Mr. Ram Prakash Shekhar, the learned counsel appearing for the State of Jharkhand has vehemently argued that since the petitioner was illegally appointed against the post which was not sanctioned by the State Government, no direction can be issued by the Court and the matter does not require any interference by this Court. 8. Mr. Ananda Sen, learned counsel appearing for the respondent no. 5 has submitted that in the contempt case, which has been filed by the petitioner, the School has categorically stated that the then Secretary of the Managing Committee of the School had illegally appointed the petitioner on the post of Assistant Teacher. 9. I find that the advertisement issued by the Secretary, Urdu Town Middle School, Chakardarpur discloses that applications were invited for appointment on two sanctioned post in Matric-trained pay-scale. The appointment letter dated 20.02.1993 issued by the Secretary of the School indicates that the offer of appointment was temporary and subject to approval of the Education Department, Government of Bihar. The office order dated 01.07.1994 discloses that only provisional approval for appointment of the petitioner in Matric Trained pay-scale was issued by the District Superintendent of Education. The order dated 01.07.1994 does not disclose that the appointment of the petitioner was approved as Assistant Teacher in Scout, Sports and Drill. It also does not disclose that there was a sanctioned vacant post of Assistant Teacher in Scout, Sports and Drill. The exercise which was undertaken pursuant to Resolution dated 05.11.1993 whereunder necessary informations were sought from the schools about the teachers working there, would indicate that the appointment of the petitioner was not approved and rather, initially it was kept pending. On 01.10.1996, the Director, Primary Education, Government of Bihar issued a letter to all the District Superintendent of Education not to make payment to the teachers appointed in Minority-aided Primary Schools without approval of the proposition statement. On 01.10.1996, the Director, Primary Education, Government of Bihar issued a letter to all the District Superintendent of Education not to make payment to the teachers appointed in Minority-aided Primary Schools without approval of the proposition statement. Pursuant to the direction dated 01.10.1996, the salary of the petitioner was stopped since January, 1998 and therefore, the petitioner approached this Court in CWJC No. 278 if 1999 (R) and the writ petition was disposed of by order dated 15.12.2000 directing the District Superintendent of Education, Chaibasa to pass a reasoned order on the representation of the petitioner. The District Superintendent of Education by order dated 22.02.2001 communicated to the petitioner that he would not be paid salary till the proposition statement is approved by the Director. The petitioner again moved this Court in WP(S) No. 2349 of 2001 which was disposed of by order dated 07.03.2002 directing the respondents to obtain necessary approval of the proposition statement and payment of salary to the petitioner. The proposition statement of the petitioner was finally rejected by order dated 06.09.2002 on the ground that the petitioner was appointed on a post which was not sanctioned. The petitioner was neither eligible for appointment on the post of Matric-trained teacher nor there was a sanctioned post of Matric-trained teacher. The comparative chart of the candidates prepared after the interview does not bear signature of any officer of the Education Department nor approval for appointment of the petitioner was taken from the Department. Pursuant to order dated 11.12.2002 passed in Contempt (Civil) no. 467 of 2002, though the petitioner was paid arrears of salary and thereafter also he has been paid salary pursuant to order passed by this Court, however, I find that the petitioner has continued in service by virtue of order dated 09.09.2003 passed by this Court restraining the respondent-authority from terminating the service of the petitioner without prior permission of the Court and therefore, the petitioner cannot claim any benefit due to his continuance in service. In view of the aforesaid, I am of the opinion that since the initial appointment of the petitioner itself was illegal, no interference is required in the matter. 10. In “State of Orissa and Anr. Vs. Mamata Mohanty”, reported in (2011) 3 SCC 436 , the Hon'ble Supreme Court has held as under:- 37. In view of the aforesaid, I am of the opinion that since the initial appointment of the petitioner itself was illegal, no interference is required in the matter. 10. In “State of Orissa and Anr. Vs. Mamata Mohanty”, reported in (2011) 3 SCC 436 , the Hon'ble Supreme Court has held as under:- 37. “It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.” 11. I further find that in exercise of powers under Section 8 of Bihar Non-Government Elementary Schools (Taking Over & Control) Act, 1976, Memo No. 2501 dated 31.12.1982 was issued which provides that the teachers appointed in Government aided Minority Schools must possess minimum educational qualification of Matric-trained and approval for appointment of untrained teachers after 01.01.1971 would not be granted. It further provides that in the Middle Schools one Graduate-trained teacher and one Intermediate-trained teacher must be appointed. The respondents have taken a plea that by memo no. 37 of 16.1.1991 one post of Graduate-trained teacher and one post of Intermediate-trained teacher were approved by the Department of Human Resource Department. Admittedly, the petitioner was not a trained teacher though, he was a graduate. The petitioner was appointed as Assistant Teacher in Matric-trained scale for which no post was sanctioned by the Government. 12. In “Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others” reported in (2008) 7 SCC 153 , the Hon'ble Supreme Court has held that appointment in violation of provision which provides for essential educational qualification would be a nullity and if the essential educational qualification for recruitment to post is not satisfied, the same cannot be condoned. 13. 12. In “Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others” reported in (2008) 7 SCC 153 , the Hon'ble Supreme Court has held that appointment in violation of provision which provides for essential educational qualification would be a nullity and if the essential educational qualification for recruitment to post is not satisfied, the same cannot be condoned. 13. Referring to the contention raised by the learned Senior counsel for the petitioner that the petitioner continued in service since, 1993 without break and there has been no complaint with respect to the competence of the petitioner, I am of the opinion that, in view of the fact that the petitioner's appointment itself was illegal, no benefit can be extended to the petitioner on account of his long continuance in service. Moreover, the petitioner continued in service after 09.09.2003 by virtue of the interim order passed by this Court. 14. In “Shesh Mani Shukla Vs. District Inspector of Schools, Deoria and Others”, reported in (2009) 15 SCC 436 , the Hon'ble Supreme Court has held as under:- 19. “It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. (See Food Corpn. Of India v. Ashish Kumar Ganguly.) Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. (See State of M.P. v. Sanjay Kumar Pathak.)” 15. In “State of Karnataka and Others Vs. Gadilingappa and Others”, (2010) 2 SCC 728 , the Hon'ble Supreme Court, after taking note of the judgments reported in (2006) 4 SCC 1 and (2008) 10 SCC 1 , has held that long years of continuous service without break would not justify the claim for regularisation since the candidates did not posses minimum prescribed educational qualification for appointment and thus, their appointments were illegal. 16. 16. A Constitution Bench of the Hon'ble Supreme Court in “Secretary, State of Karnataka & Others Vs. Uma Devi and Others” reported in (2006) 4 SCC 1 has observed as under, 43. “.............. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.................” 17. In view of the aforesaid, I find that reliance placed by the learned Senior counsel appearing for the petitioner on Circular dated 24.09.1985 and 29.11.1980 is misplaced. The appointment of the petitioner cannot be said to be irregular. It was an illegal appointment made on a post which was not sanctioned. The petitioner was not possessing minimum educational qualification for the post on which he was appointed and therefore, the appointment of the petitioner was illegal and not irregular. In view of the judgments referred to hereinabove, the judgments relied upon by the learned Senior counsel for the petitioner would not lend support to the case of the petitioner. 18. In the result, the writ petition fails and accordingly, it is dismissed.