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2014 DIGILAW 986 (JHR)

Kumar Suman Jee v. State of Jharkhand

2014-09-18

APARESH KUMAR SINGH

body2014
ORDER : Heard learned counsel for the parties. 2. The present controversy is in relation to the internecine dispute between the petitioner and the private respondent of being given the post of Incharge Headmaster of Plus Two Pichhari Jati Awasia Balika Uchha Vidyalay, Kuruwa, Dumka. Both the persons have their own reasons to justify that one over the other is the proper person to be posted as Incharge Headmaster. Some of the relevant details of the parties are being indicated hereunder: (i) The petitioner is said to have joined on 11th November, 1994 in the Graduate Trained Scale and completed teachers training in the year 2002 while obtained the B.Ed. Degree in May, 2013. He was posted in the instant school on 29th April, 2008 as a Teacher. It is further claim of the petitioner that on 19th May, 2011, he was posted as Incharge Headmaster of the said school and on 2nd June, 2011, the same was confirmed by the Deputy Director, Welfare, Santhal Paragana Division, Dumka. (ii) The petitioner submits that the respondent no. 5 was appointed in Matric Untrained Scale in 1982 and got Graduate Trained Scale on 31st December, 1994 after the petitioner. It has been asserted by the petitioner that the private respondent does not have B.Ed. qualification and there are questions over the Post Graduation Degree of the private respondent as well. It is also submitted by the learned counsel for the petitioner that the private respondent got posted as Incharge Headmaster on 31st December, 2012 by the order of Deputy Commissioner and not by the department. Though she continued thereafter, but on the petitioner's representation made on 16th December, 2013 after having obtained the B.Ed qualification he has been posted as Incharge Headmaster by an order of the respondent department issued on 11th March, 2014 indicating therein that he will continue till regular Headmaster was appointed. It is therefore submitted that the private respondent cannot claim to be senior to the petitioner to be considered for even giving the charge of Headmaster and the gradation list which is relied upon by the private respondent is only provisional in nature published in 2012 in respect of which objections have also been made. It is therefore submitted that the private respondent cannot claim to be senior to the petitioner to be considered for even giving the charge of Headmaster and the gradation list which is relied upon by the private respondent is only provisional in nature published in 2012 in respect of which objections have also been made. It is further submitted that since no fresh determination on the inter se seniority of the petitioner and the private respondent has been made after issuance of the order of 11th March, 2014, there is no reason why the said arrangement should be disturbed by the impugned order dated 20th June, 2014, Annexure11 to the writ petition. 3. Learned counsel appearing on behalf of private respondent submits that the private respondent belongs to female category and since the school is +2 Backward Caste Girls Residential High School, she is considered better suited to be posted as Incharge Headmistress. It is further submitted that the arrangement of the private respondent as the Incharge Headmistress continued in the school from 13th January, 2012 till the same was replaced by the order issued on 11th March, 2014, placing the petitioner as Headmaster. However, the respondents have realized their mistakes and the respondent no. 5 has therefore been posted as Incharge Headmistress by the impugned order. 4. Learned counsel also has relied upon the provisional gradation list issued in the year 2012 where the name of respondent no. 5 appears at serial no. 38, while the name of petitioner appears at serial no. 124. Assertion have also been made that the respondent no. 5 is a Post Graduate in Sanskrit and Hindi. It is also asserted that the private respondent is a Matric Trained Teacher. It is further submitted that private respondent is much senior to the petitioner having been appointed in 1982 itself. Therefore, the Respondent-State found that posting of the petitioner as Incharge Headmaster was because of some confusion which has rightly been corrected. 5. Learned counsel for the Respondent-State have filed two counter affidavits. First is sworn by the Sub Divisional Welfare Officer, Dumka and the second is sworn by Under Secretary of the Respondent-Department. Learned counsel for the Respondent-State submits that the aforesaid arrangement is only a stopped gap/adhoc arrangement and a lady teacher is preferred since it is a Residential Girls School. Therefore the private respondent was made Incharge. First is sworn by the Sub Divisional Welfare Officer, Dumka and the second is sworn by Under Secretary of the Respondent-Department. Learned counsel for the Respondent-State submits that the aforesaid arrangement is only a stopped gap/adhoc arrangement and a lady teacher is preferred since it is a Residential Girls School. Therefore the private respondent was made Incharge. It is also submitted that the claim of the petitioner that he is continuing to hold the Incharge post of Headmaster pursuant to order dated 11th March, 2014, even after issuance of the impugned order dated 20th June, 2014 is not correct as he himself communicated to the District Welfare Officer, Dumka, through letter dated 15th August, 2014 that he has resumed charge from 15th August, 2014 in view of the status quo order passed by this Court in the present writ application. 6. Learned counsel for the State submits that there has been internecine dispute between the petitioner and the private respondent and therefore another teacher, a regular Headmaster of Scheduled Tribe Residential High School, Dumka was given additional Incharge Headmaster of the school by the order dated 27th June, 2014 issued by the Deputy Secretary of the respondent department, but she did not accept the same on personal ground and intimated accordingly on 19th August, 2014. Learned counsel for the Respondent-State therefore submits on the basis of categorical statements made at paragraph 17 of the second counter affidavit that a fresh decision will be taken by the Establishment Committee shortly for posting of a regular Headmaster. Learned counsel further informs on instruction that the Establishment Committee meeting is to be held at the level of the department for taking a decision. These are the relevant facts on the internecine claims of the petitioner and the private respondent as well as the stand of the State. 7. On consideration of the aforesaid materials and upon hearing the counsel for the respective parties, it is to be noted that the private respondent had continued in adhoc arrangement as a Headmistress of the school from 13th January, 2012 which was however replaced by the order dated 11th March, 2014 issued by the respondent department itself. It appears that the said order may have been issued upon the representation of the petitioner made in December, 2013 after he had obtained the B.Ed Degree for being posted as Headmaster Incharge of the school. It appears that the said order may have been issued upon the representation of the petitioner made in December, 2013 after he had obtained the B.Ed Degree for being posted as Headmaster Incharge of the school. Reliance has also been placed on the provisions of Jharkhand Nationalized Middle School (Service Conditions) Rules, 2004, specifically Rule 4 thereof, laying down the essential qualification and criteria for being appointed as a Headmaster of such school. The order dated 11th March, 2014 stipulates that the petitioner would continue as a Headmaster Incharge till a regular Headmaster is posted at the said place. The order was issued with immediate effect. The impugned order however is a cryptic one without any reasons as to why the said arrangement has been disturbed. No significant reasons have been brought to the notice of the Court by the learned counsel for the Respondent-State/private respondent as to why such an adhoc arrangement had to be changed within a period of 3 months. The underlying reasons and the circumstances which were existing at the time of issuance of the order dated 11th March, 2014 do not appear to have changed to prompt the respondent state officials to replace the adhoc arrangement. Even other wise, the order under which the petitioner was posted as a Adhoc Incharge Headmaster was to continue till a regular headmaster is appointed. 8. The respondent state in their counter affidavit clearly stated that the establishment committee meeting is to be held to post a regular headmaster in the school in question shortly. In such circumstances, the respondents have failed to justify issuance of the impugned order by which the adhoc arrangement of posting of the petitioner as Incharge Headmaster by order dated 11th March, 2014 has been changed. The impugned order which in effect replaces an adhoc arrangement with another adhoc arrangement has to go. It is accordingly quashed. The Respondent-State however are directed to hold the establishment committee meeting within a reasonable time preferably within 3 months to take a decision on posting of a regular headmaster/headmistress of the school in question. 9. The writ petition is accordingly allowed in the aforesaid manner.