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2014 DIGILAW 620 (JHR)

Neha Khan v. State of Jharkhand

2014-05-12

APARESH KUMAR SINGH

body2014
ORDER Heard learned counsel for the parties. 2. The case of the petitioner is that she has been appointed as Assistant Teacher in one Urdu Town Middle School, Main Road, Chakradharpur, West Singhbhum, a Government Aided Minority School after following the policy and procedure laid down by the State Government for such appointment and after due issuance of advertisement, interview by the Managing Committee of the school, in which the departmental representative was also present. The appointment letter is dated 19th June, 2011 and she has been working after submitting her joining on 22nd June, 2011 in the said school. For approval for appointment and fixation of pay scale recommendations have been made to the District Superintendent of Education, West Singhbhum by the Secretary of the school, which was also approved on 7th May, 2012 vide Annexure-8. However the approval of pay fixation was subject to the decision of the Directorate of Primary Education, Human Resources Development Department. When the same was being delayed the petitioner approached this Court in the present writ application. 3. The Respondent-State has filed counter affidavit in the matter taking a plea that after enforcement of Right to Free and Compulsory Education Act, 2009 and the notification dated 31st March, 2010 issued by the Ministry of Human Resources Development Department, Government of India, minimum qualifications for appointment as teachers in the elementary classes were also notified subsequently vide notification dated 23rd August, 2010 and also vide notification dated 29th July, 2011. One of the essential requirements therein was that a person should have passed Teacher Eligibility Test (T.E.T) which is conducted by the appropriate government in accordance with N.C.T.E Guidelines. The petitioner does not fulfill the said qualification and therefore she is not entitled for approval of her service and fixation of pay scale by the Respondent-State who cannot be responsible for meeting salary and other expenses of allowances of such a teacher. 4. The respondents have also relied upon a judgment rendered in the case of Suchita Kongari-Vs.- State of Jharkhand in W.P.(S) No. 7939 of 2012 stating that after issuance of notification dated 23rd August, 2010 any appointment made on the post of teacher has to be in conformity with the said notification. According to them, in the absence of such eligibility qualification the said writ petition was dismissed in similar circumstances. According to them, in the absence of such eligibility qualification the said writ petition was dismissed in similar circumstances. Copy of which has been enclosed to the counter affidavit as well, Annexure-B. 5. The petitioner in her rejoinder has enclosed copy of another judgment rendered by learned Single Judge in the case of Subodh Bilung Vs. State of Jharkhand and others decided with other analogous cases on 6th January, 2014, Annexure-18. According to her, earlier judgment rendered by the same learned Single Judge was also considered and after noticing the relevant provisions of para-3 of notification dated 23rd August, 2010, which reads as under: “3.Training to be undergone – A person- (a) with BA/B.Sc. with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class I to V upto 1st January, 2012 provided he undergoes, after appointment, an NCTE recognized 6month special programme in Elementary Education. (b) with D.Ed (Special Education) or B.Ed (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6-month special programme in Elementary Education.”; it was held that the matter in respect of said petitioners were required to be reconsidered by the respondents as the said petitioners had also been possessing the degree in graduation with at least 50% marks and had also secured B.Ed. Degree and they were appointed prior to 1st January, 2012. 6. In the present case, according to the petitioner, she is having qualification of Bachelor of Arts and she is also having teachers training qualification of B.Ed Degree. She incidentally has Master's degree. In such circumstances, learned counsel for the petitioner has submitted that the matter requires reconsideration at the end of the respondent keeping into the light the judgment rendered in identical circumstances by this Court in the case of Subodh Bilung (Supra). The present petitioner is having more than 50% marks and admittedly appointed before 1st January, 2012 i.e. on 19th June, 2011. 7. Having heard learned counsel for the parties and having gone through the relevant materials on record, what emerges is, that the petitioner at the time she made her application for appointment as Assistant Teacher in the Urdu Town Middle School, Main Road, Chakradharpur, West Singhbhum in question was possessing more than 50% marks in graduation and also having teachers training qualification in B.Ed. Degree. Degree. The exercise of her appointment seems to have been undertaken by the Managing Committee in presence of the departmental representative as well after issuance of the advertisement. The said exercise for filling up the post was undertaken after retirement of a serving teacher in the school in question. The relevant provisions of Act of 2009 and the notification issued on 23rd August, 2010 were considered by learned Single Judge of this Court in the judgment rendered in Subodh Bilung (Supra), in similar circumstances Paras 10 to 14 of the said judgment are worthy of being quoted hereunder as they deal with the similar issues. “10. Having appreciated the contentions raised on behalf of the counsel for the parties, I find that under Clause-1 of the notification dated 23.08.2010 which prescribes minimum qualification for appointment on the post of Assistant Teacher for Class-I to V, a candidate is required to possess the following qualifications: (a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B. El. Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education). AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. 11. However, under Clause3, it appears that the persons who are Graduate with at least 50% marks and who have acquired B.Ed. qualification on the date of appointment, have been exempted from passing the TET examination provided after the appointment the candidate undergoes an NCTE recognised 6-month special programme in Elementary Education. Paragraph-3 of notification dated 23.08.2010 is extracted below: 3. Training to be undergone – A person- (a) with BA/B.Sc. with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class I to V upto 1st January, 2012 provided he undergoes, after appointment, an NCTE recognized 6-month special programme in Elementary Education. Paragraph-3 of notification dated 23.08.2010 is extracted below: 3. Training to be undergone – A person- (a) with BA/B.Sc. with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class I to V upto 1st January, 2012 provided he undergoes, after appointment, an NCTE recognized 6-month special programme in Elementary Education. (b) with D.Ed (Special Education) or B.Ed (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6-month special programme in Elementary Education. 12. In the present case, admittedly, all the petitioners possess the degree in graduation with at least 50% marks and they had also acquired B.Ed. Degree on the date on which they were appointed. All the petitioners have been appointed prior to 01.01.2012 and therefore, I am of the view that the petitioners in the present batch of cases would be covered under Clause-3 of the notification dated 23.08.2010. 13. In “Prabhakar Singh Vs. State of U.P.” (supra), the Hon'ble Allahabad High Court has also noted as under: 60. “The fact that in the notification the said appointment to BA/B.SC with 50% marks and B.Ed. for Class I to V was limited till 1stst January, 2012 clearly indicated that the said Clause 3 was inserted as exception to an additional qualification to one which was provided in Clause I. Further requirement that such teachers appointed to Classes I to V which were B.A/B.Sc with 50% marks and B.Ed. shall be provided six months elementary program is clearly for achieving the purpose for which notification was issued. 61. The notification dated 23rd August, 2010 has been amended by notification dated 29thth July, 2011 wherein paragraph 3 was substituted as follows: “3(i) Training to be undergone. A person (a) with Graduation with at least 50% marks and B.Ed. qualification or with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard, shall also be eligible for appointment to Class I to V up to 1st January, 2012, provided he/she undergoes, after appointment, an NCTE recognized 6 month Special Programme in Elementary Education; (b) with D.Ed. (Special Education) or B.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment an NCTE recognised 6 month Special Programme in Elementary Education...............” The scheme of Clause 3 as an additional qualification for appointment as teacher to teach Class I to V was thus clearly retained and continued even after amendment.” 14. In the earlier writ proceedings, the exemption clause was neither brought to the notice of the Court nor the judgment passed in Allahabad High Court in “Prabhakar Singh Vs. State of U.P.” (supra), was brought to the notice of the Court and therefore, I am inclined to entertain the present batch of cases. Moreover, factually also, the present batch of cases are different from other cases.” 8. Having regard to the fact that the similar issue has crossed the attention of this Court earlier and pronouncement having been made on the interpretation of the relevant provisions of the notification dated 23rd August, 2010, it appears that the same has not been considered by the respondent while taking a decision in the present case as is apparent from their counter affidavit. The judgment rendered by learned Single Judge earlier in the case of Suchita Kongari (Supra) also was noticed by learned Single Judge while delivering the judgment in the case of Subodh Bilung (Supra) on 6th January, 2014, Annexure-18. 9. In the aforesaid facts and circumstances, therefore, the matter is remitted to the respondent no.2, Director, Primary Education, Human Resources Department, Ranchi, to take fresh decision in the matter after consideration of all aspects of the matter and the judgment rendered in the case of Subodh Bilung (Supra) in accordance with law within a period of 12 weeks from the date of receipt of a copy of this order/judgment. 10. Dependent upon such determination, necessary consequential orders may be passed thereafter by the respondent. 11. Accordingly, the writ petition stands disposed of. Petition disposed of.