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2014 DIGILAW 1279 (JHR)

Thakur Das Mahato v. State of Jharkhand

2014-12-17

SUJIT NARAYAN PRASAD

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JUDGMENT SUJIT NARAYAN PRASAD, J. 1. Petitioners pray inter alia for the following reliefs in the writ petition:- (i) For issuance of appropriate writs, orders and/or direction, particularly a writ in the nature of certiorari for quashing the letter no. 912 dated 16.10.2009 (as contained in Annexure-8) by which the service of petitioners has been terminated. (ii) For issuance of appropriate writs, orders and/or direction, particularly a writ in the nature of mandamus commanding upon the respondent authorities not to give effect to the impugned letter dated 16.10.2009 (as contained in Annexure-8) and allow the petitioners to continue along with all consequential benefits. 2. It is submitted on behalf of the petitioners that the Jharkhand Public Service Commission had issued an advertisement in the year 2003 inviting application for appointment to the post of Assistant Teachers. Petitioners having all requisite qualification for appointment applied for the same. Thereafter, the Jharkhand Public Service Commission issued admit card to the petitioners for appearing in the examination, in pursuance to the same the petitioners had appeared in examination on 27.05.2003. Petitioners having been declared successful were called for verification of certificates and other documents as well as teachers training certificate granted by Vidya Sagar University, West Bengal. After getting it verified, petitioners had been appointed as teacher and accordingly appointment letters were issued to them on 20th February, 2009. Petitioners have got the B.Ed. degree from Prabhat Kumar College, Contai, District Purbha, Medninagar, West Bengal in the session of 1997-98 and 1996-97 respectively. The college from which the petitioners had got B.Ed. degree was established in the year 1926 and was affiliated to Calcutta University but after the creation of new University namely, Vidya Sagar University w.e.f. 23rd May, 1995, the certificate was issued by the Registrar of the University on 25th June, 2004 (Annexure-4). From perusal of letter dated 25th June, 2004, it would be evident that Vidya Sagar University has been established by the Act Vidyasagar University Act, 1981 passed by the West Bengal Legislative Assembly and published in Calcutta Gazette, Extraordinary on 24th June, 1998. The University has been recognized by UGC in 1990 and accredited and awarded three Stars by NAAC in 2002. 3. It has been submitted that college in question was also approved under section 18(b) of NCTE Act, 1993 as per the amendment made in 2006 with retrospective effect. 4. The University has been recognized by UGC in 1990 and accredited and awarded three Stars by NAAC in 2002. 3. It has been submitted that college in question was also approved under section 18(b) of NCTE Act, 1993 as per the amendment made in 2006 with retrospective effect. 4. Show cause notice had been issued to the petitioners on 23rd September, 2009 asking the petitioners to give reply by making reference of certified copy of the orders passed by this Court as to why the appointment of the petitioners be not cancelled on the ground that teachers training certificate has not been produced of the recognized institute. 5. Petitioners have given due reply by making reference of Official Gazette as contained in order dated 8th December, 2006 (Annexure-5) by which the degree obtained from the institute in question has been affiliated with retrospective effect. 6. The authority without considering the reply given by the petitioners has passed the impugned order on 16th October, 2009 by which the petitioners have been informed that they have been removed from services which has been assailed by them. 7. The ground of challenge of the impugned order by the petitioners is that they have submitted the teachers training certificate from Prabhat Kumar College, Contai, District Purbha, Medninagar, West Bengal in the session of 1997-98 and 1996-97 by virtue of order contained in order dated 8th December, 2006 (Annexure-5), the teachers training degree obtained from college in question has been validated with retrospective effect also of the sessions 1996-97 and 1997-98. Hence, the ground taken by authorities that they have not obtained the teachers training certificate from recognized institute is absolutely incorrect and contrary to the Gazette notification as contained in order dated 8th December, 2006 (Annexure-5) issued under the signature of Registrar, Director Assistant Registrar Committee of NCTE which has been issued in exercise of power conferred to the authority under section 18(b) of NCTE Act 1993. Hence it has been submitted that the ground on which the petitioners have been dismissed from service is absolutely nonest and the same has been passed without application of mind because authorities in one line has said eligibility is not satisfactory but why it is not satisfactory, this reason has not been disclosed by them. 8. Hence it has been submitted that the ground on which the petitioners have been dismissed from service is absolutely nonest and the same has been passed without application of mind because authorities in one line has said eligibility is not satisfactory but why it is not satisfactory, this reason has not been disclosed by them. 8. On the other hand, counsel for the respondent-State has submitted by referring to counter affidavit that the petitioners have been appointed on the basis of teachers training certificate, which was not obtained by the recognized institute as on the date of consideration of the candidature of the petitioners. 9. It has been submitted on behalf of respondents that on the date of consideration there was no Gazette Notification as contained in Annexure-4 to the writ petition and as such the authorities have taken a correct decision by removing the petitioners from service. 10. Learned counsel for the respondents has also relied upon one judgment passed by this Court in W.P. (S) no. 5891 of 2005 wherein the issue with respect to non-consideration of the teacher training certificate not being issued from the recognized institute cannot be entertained and if any appointment has been made, the same is to be discontinued. 11. Heard the parties and perused the documents on record. 12. An advertisement for making appointment to the post of Assistant Teacher was issued in the year 2003. 13. It is case of the petitioners that petitioners have obtained teachers training certificate in the year 1996-97 and 1997-98, but in the said session, the University in question was not affiliated from NCTE Act, 1993. 14. The plea taken by the petitioners is that subsequently in exercise of power under section 18(b) of NCTE Act, 1993, the college in question has been recognized by virtue of Official Gazette as contained in order dated 08.12.2006 and as such the ground on which the petitioners have been removed from service has become nonest. 15. Now it is to be decided that as to whether the requisite qualification on the date of making application is necessary to consider or any subsequent development can rectify the legality of not possessing the requisite qualification. 16. To determine the issue, it is necessary to look into the NCTE Act 19993 which has been implemented with effect from 17.06.1995. Now it is to be decided that as to whether the requisite qualification on the date of making application is necessary to consider or any subsequent development can rectify the legality of not possessing the requisite qualification. 16. To determine the issue, it is necessary to look into the NCTE Act 19993 which has been implemented with effect from 17.06.1995. The cut of date has been given, any degree obtained prior to 07.06.1995 from the institute which is not recognized, the candidate may be appointed but if the degree obtained after 17.06.1995 from the institute which is not recognized then on the basis of the said certificate no appointment should be made. 17. The NCTE Act, 1993 is statute and cut of date has already been given i.e. 17.06.1995. 18. Petitioners in the instant case were admittedly not possessing their teachers training from recognized university which cannot be said to come under the purview of the NCTE Act, 1995 because they admittedly have obtained teachers training in the sessions for 1996-97 and 1997-98 which is after the cut of date i.e. 17.06.1995. 19. The advertisement has been published in the year 2003 hence the cutoff date for consideration of eligibility of a candidate is the date of application, if any candidate is submitting his application which is contrary to the statute then the relevant date for consideration is the date of application. If there is any mistake that cannot be rectified by virtue of subsequent development. 20. In this background, the argument advanced by learned counsel for the petitioners that since the college in question has already been recognized by virtue of the Gazette notification as contained in order dated 08.12.2012, in my view does not support and give strength to the case of the petitioners because the authority should have considered the candidature of the petitioners on the basis of eligibility, the authority ought to have considered the requisite qualification which the candidates are possessing on the date of appearing of the cutoff date of advertisement. If the candidates are not fulfilling the requisite qualification on due date of consideration, they have got no right to remain in service. 21. It has been held by the Apex Court in case of Rakesh Kumar Sharma vs. State (NCT and Delhi) and Others, 2013 11 SCC 58 as follows: “17. If the candidates are not fulfilling the requisite qualification on due date of consideration, they have got no right to remain in service. 21. It has been held by the Apex Court in case of Rakesh Kumar Sharma vs. State (NCT and Delhi) and Others, 2013 11 SCC 58 as follows: “17. A three-Judge Bench of this Court in Ashok Kumar Sharma vs. Chander Shekhar reconsidered and explained the judgment of Ashok Kumar Sharma (1993) observing (Chander Shekar case, SCC pp.21-22 para 6 “6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. All advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. On reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualification by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment.” The court in Ashok Kumar Sharma further explained that the majority view in Ashok Kumar Sharma (1993) was not correct, rather the dissenting view by R.M. Sahai, J. was correct as the Court held as under: (SCC p.22, para 6) “The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.” 20. This Court lately in State of Gujarat vs. Arvindkumar T. Tiwari held: (SCC p. 550, para 14) “(14) A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the Court for any relief for the reason that he does not have a right which can be enforced through Court. (See Prit Singh vs. S.K. Mangal and Pramod Kumar vs. U.P. Secondary Education Services Commission)” (Emphasis Supplied) A similar view has been reiterated by this Court in Pramod Kumar vs. U.P. Secondary Education Services Commission and State of Orissa vs. Mamata Mohanty. (22) It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement. (23) There is no obligation and on the court to protect an illegal appointment. The extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance.” 22. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance.” 22. The same issue was fail for consideration before this Court in W.P. (S) no. 5891 of 2005 which was decided on 16.08.2008 and while answering these questions, this Court has observed as follows: “Having heard learned counsel appearing for the parties, it does appear that the institute, Sevayatan Shiksha Mahavidyalaya, Jhargaon from where the petitioners got the degree of B.Ed. for the sessions 1996-97 was recognized by the Vidya Sagar University, the University which has got recognition from the University Grant Commission as well as State of West Bengal but certainly the institute was not recognized by the N.C.T.E. It be stated that after the commencement of the N.C.T.E. Act, 1993 every institution offering or intending to offer a course or training in Teachers Education on or after the appointed day, i.e., 1st July, 1995 was required to make an application in terms of section 14 of the Act for its recognition by the N.C.T.E. However, under proviso to sub-section (1) of Section 14 an institution offering a course of training in Teachers Education immediately before the appointed day, i.e. prior to 1st July, 1995 was entitled to continue such course or training for a period of six months that means up to December, 1995. Thereafter, without recognition by the N.C.T.E., no institution, offering a course or training in Teachers Education can run the institute meaning thereby that since January, 1996 there is a bar to run an institute for offering a course or training in Teachers Education. Further clause (b) to Section 16 also prohibits an Examining Body to hold examination, whether provisional or otherwise, for a course or training, conducted by an unrecognized institution. Further clause (b) to Section 16 also prohibits an Examining Body to hold examination, whether provisional or otherwise, for a course or training, conducted by an unrecognized institution. In view of the aforesaid provisions of law, even if a Teachers Training Institute is affiliated to a University, which is recognized by the University Grant Commission, such as Vidya Sagar University etc., offering training course, if not recognized by the N.C.T.E., no examination can be held by a University, whether provisional or otherwise for the students who completed Teachers Training Course after January, 1996 and hence, any degree given after 1996 without having recognition by the N.C.T.E, cannot be said to be a recognized degree for the purposes of appointment as Teacher in Primary School. However, Eastern Regional Committee N.C.T.E., Bhubaneshwar by virtue of provision as contained in Rule 6(5) made under the Amending Act validated qualification of the students with retrospective effect from 1995-96 and onwards and hence, question falls for consideration as to whether the petitioners would be entitled to be appointed on the post of primary teachers on the basis of degrees which have been validated with retrospective effect? The answer, in my view, would be in negative as it has been well settled that one should be qualified or having requisite qualification on the date of advertisement on the date of appointment and not at a later stage unless rule to that regard permits. In this regard a case of Mohd. Sartj and Another vs. State of Uttar Pradesh and Others, (2006) 2 SCC 315 may be referred to. Admittedly, on the date of advertisement, petitioners’ degrees were not recognized by the N.C.T.E and hence, they cannot be said to have had requisite qualification on the date of advertisement/date of appointment, though degrees have been validated with retrospective effect but that will have no bearing over the matter related to appointment, pursuant to advertisement made on 28.8.2002, though such degree can be recognized as a valid for the purpose of appointment, if it is made pursuant to advertisement issued after December, 2006. Moreover, the Government has again advertised the post of primary Teachers to be filled up and pursuant to that, Jharkhand Public Service Commissioner has perhaps already held examination. Under these situations, I do not find any merit in this application. Hence, this writ application is dismissed.” 23. Moreover, the Government has again advertised the post of primary Teachers to be filled up and pursuant to that, Jharkhand Public Service Commissioner has perhaps already held examination. Under these situations, I do not find any merit in this application. Hence, this writ application is dismissed.” 23. Taking into consideration the facts in the entirety, I find that there is no need to make any interference with the impugned order. Hence, the writ petition being devoid of merit is, hereby, dismissed.