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2015 DIGILAW 912 (JHR)

Birendra Prasad v. State of Jharkhand

2015-08-03

RONGON MUKHOPADHYAY

body2015
JUDGMENT : RONGON MUKHOPADHYAY, J. 1. In this writ application, the petitioner has sought for a direction from this Hon’ble Court to recognize/regularize the service of the petitioner and his teaching and non teaching staffs working in Project Girls High School, Pratappur, District-Chatra as also to pay salary with all consequential benefits with effect from 1.1.1989 in terms of the order as contained in letter no. 142 dated 4.2.1989 as per the orders passed by the Hon’ble Supreme Court as well as Patna High Court. 2. The facts which arise from the averments made in the writ application are that in order to eradicate the educational backwardness from the society, the State Government had taken a decision to establish four high schools in each block of the State, out of which, one must be a girls high school. The State Government decided to introduce and regulate the said scheme, popularly known as Project Scheme, firstly in Chhotanagpur and Santhal Pargana Division. The scheme was notified by the State Government vide Government letter no. 1115 dated 27.05.1981. Following the policy decision, the State Government in the financial year 1981-82 selected 150 high schools in different blocks of the State and most of the schools were running with public assistance. However, due to paucity of fund, no school was selected in the financial year 1982-83 and 1983-84 but in the financial year 1984-85, the State Government decided and selected 300 blocks to select or establish at least one girls high school in each of the said blocks in terms of letter no. 12 dated 25.01.1985. The State Government vide letter no. 108 dated 12.02.1985 selected 75 girls high schools in 75 blocks out of 300 selected blocks but since difficulties arose in selection of the school, as such a letter was issued by the Education Department bearing letter no. 142 dated 23.02.1985 constituting a three men committee in each district selected by the concerned District Magistrate with a direction to select the schools in their respective districts. 3. The local people of Pratappur Block and its adjoining areas in order to facilitate the education of girls established a girls high school, which was also selected as one of the Project Schools by the Three Men Committee constituted in the district of Hazaribagh. 3. The local people of Pratappur Block and its adjoining areas in order to facilitate the education of girls established a girls high school, which was also selected as one of the Project Schools by the Three Men Committee constituted in the district of Hazaribagh. The Managing Committee of the Project Girls High School, Pratappur started making the process of appointment, to which the petitioner had also applied and the Managing Committee of the school appointed the petitioner on the post of In-charge Headmaster and a letter to that effect was issued on 18.11.1984. The petitioner pursuant to his letter of appointment joined the post of in-charge headmaster on 19.11.1984. The petitioner being the senior most teacher of the school was authorized to act as Acting Headmaster and subsequently the Managing Committee vide Resolution dated 11.04.1985 appointed the petitioner on the post of permanent Headmaster in the school and a letter to that effect was issued on 11.04.1985 under the signature of the Secretary of the School. The State Government issued an order vide letter no. 142 dated 4.2.1989 providing payment of salary to teaching and non teaching staffs with effect from 1.1.1989, whose appointments have been made prior to selection of the school and certain conditions were stipulated in the said letter dated 4.2.1989. Several writ applications were preferred before the Hon’ble Patna High Court by teaching and non teaching staffs of the Project School for recognition of their services and for payment of salary. The validity of the letter no. 142 dated 4.2.1989 was also challenged but the same being dismissed an appeal was preferred before the Hon’ble Supreme Court, which remitted the matter back to the Hon’ble Patna High Court for constituting a Full Bench and deciding all the issues relating to Project Schools. Full Bench passed an order on 7.12.1999, against which the State of Bihar went in appeal in Civil Appeal No. 6626-6681/2001 before the Hon’ble Supreme Court, in which specific direction was given that the committee shall also deal with all such individual cases of the appellants in terms of the direction at paragraph 35 of the judgment of the Hon’ble Patna High Court. 4. Mr. 4. Mr. Saurav Shekhar, learned counsel for the petitioner, has submitted that the petitioner was selected by the Managing Committee on the post of In-charge Headmaster in view of letter dated 18.11.1984 and subsequently in terms of the Resolution dated 11.04.1985, the petitioner was appointed on the post of Permanent Headmaster. It has been submitted that at the time of appointment, the qualification of the petitioner was Bachelor of Arts (B.A) and after his appointment, he has obtained Master Degree in Arts. It has further been submitted that the petitioner had successfully completed teachers training in 1988 itself. It has also been submitted that admittedly the petitioner was appointed prior to selection of the Project Girls High School, Pratappur by the State Government. Learned counsel further adds that the Hon’ble Full Bench in the case of Project Uchcha Vidyalaya Shikshak Sangh had clearly held at paragraph 33 of the judgment that the cut off date for possessing the minimum qualification shall be the date on which the reports were submitted by the Screening Committee. Learned counsel for the petitioner has stated that the petitioner had obtained necessary qualification much prior to the report of the Screening Committee but the Screening Committee in its report did not consider the said fact while rejecting the claim of the petitioner for recognition of his services. 5. Learned J.C. to Sr. S.C. 1 while controverting the submissions advanced by the learned counsel for the petitioner, has submitted that the petitioner did not possess the certificate of graduation on the date of his appointment and that the teachers training certificate of Oxford College of Education, Kolkata affiliated to All India Education Society was obtained in the year 1998, which was after coming into force of National Council for Teachers Education Act, 1993 and since the institute from which the petitioner has obtained teachers training was not recognized, as such the qualification obtained by the petitioner subsequently from an unrecognized institute is dehors the provisions for recognition/regularization and the Three Men Committee had rightly rejected the claim of the petitioner. 6. 6. The petitioner has filed a supplementary affidavit, in which the petitioner has brought on record the decision of the Screening Committee, which has rejected the claim for recognition/regularization of his services on the ground that the petitioner was not trained at the time of appointment and that he had obtained the teachers training certificate on 15.06.1998 from Oxford College of Education, Kolkata and such certificate is not recognized under the law. 7. Full Bench of the Hon'ble Patna High Court in the case of Project Uchcha Vidyalaya Shikshak Sangh vs. State of Bihar & Others, while considering the cases similar to that of the petitioner had held as follows:- "29. Now coming to a group of cases in which some of the teachers have been refused regularization of their services since they did not possess minimum required qualification at the time of appointments by the Managing Committee of their respective schools. It would appear from circular no. 705, dated 12th October, 1982, or the second circular no. 142, dated 4th February, 1989, the minimum qualification for appointment of a teacher in such schools is "trained graduate" and one of the subjects at the graduation level is necessarily to be such as has been included within the sanctioned strength of teachers. With respect to the candidates belonging to Scheduled Castes and Scheduled Tribes, it was of course stipulated that in case candidates of these categories do not possess the training certificate, they will have to be trained at their cost within three years from the date of their appointments. From the aforesaid, it would thus appear that a teacher of general category must be a trained graduate for the purpose of recognition/regularization of the service. According to the counsel for the State, however, such a teacher must be trained graduate on the day on which he/she was appointed by the Managing Committee, wheres according to the counsel for the petitioners, the candidate must possess the qualification of "trained graduate" on the day the case is being examined for recognition/ regularization in the Project Schools by the Screening Committee. 30. 30. In my view, having regard to the facts noticed above, in absence of any policy of the Government fixing the cut off date for the purpose of possessing such minimum qualification, it would not be proper for the respondents to refuse recognition/regularization of the services of the teachers on the ground that at the time of their appointments by the Managing Committees of the respective schools, they were not trained graduates. Because such a requirement was prescribed for the first time by Circular no. 142 dated 4th February, 1989, which, as I have already held above, cannot be applied retrospectively. It would also be relevant to mention that similar was the view expressed by this Court on the previous occasion while disposing of these cases. On examining the contentious issues while fixing cut off date for possessing the requisite qualification, it was held as follows:- "33 In my view, facts of the present cases are completely different from those before the apex court in the above mentioned cases. That apart, as noticed above, similar question was answered by the Full Bench of this Court in the case of Ram Naresh Prasad Nirala vs. State of Bihar and Others (Supra) as stated above. It was held that a teacher, who was not trained on the date of report of the Special Board cannot claim to be considered for absorption in Government service on the ground of having subsequently acquired requisite qualification. True it is, the aforesaid case was in relation to a teacher of nationalised High School, but certainly ratio of that case regarding scope of untrained teachers in the matter relating to absorption/regularisation of service in the Project Schools can also be held relevant. Hence, for the reasons stated above, I hold that cut off date for possessing the minimum qualification shall be the date on which the reports were submitted by the Screening Committee." 8. It is, therefore, not in dispute that the cut off date for possessing the minimum qualification shall be the date on which the Screening Committee submits its report. The Committee was formed on 20.07.2006 and the report was submitted on 30.09.2007. Therefore, it is to be seen as to whether the petitioner had acquired the requisite qualification for his recognition/ regularization prior to submission of the said report i.e. prior to 30.09.2007. The Committee was formed on 20.07.2006 and the report was submitted on 30.09.2007. Therefore, it is to be seen as to whether the petitioner had acquired the requisite qualification for his recognition/ regularization prior to submission of the said report i.e. prior to 30.09.2007. The petitioner was a holder of Bachelor of Arts Degree on 22.10.1983 and he has completed Master of Arts in the year 1986. As per the own showing of the petitioner, he had obtained the Teachers Training Certificate in January, 1988 from Oxford College, Kolkata affiliated to All India Education Society. In order to complete his M.Ed and to qualify for the same, the petitioner had once again enrolled for the examination in 1998 for better grades but even then the petitioner could not qualify for his M.Ed. Therefore, the petitioner seems to have two certificates from the same institute, one in 1988 and the other in 1998. The National Council for Teachers Education Act, 1993 came into force from 1.7.1995 and after six months thereafter i.e. after 1st January, 1996, nobody offering a course or training for teachers education can run an institute without prior recognition by the National Council for Teachers Education. In such circumstances, therefore, the Teachers Training Certificate obtained in 1998 from an institute not recognized by the National Council For Teachers Education and which has been taken into consideration by the Three Men Committee is invalid. However, the training certificate obtained by the petitioner in the year 1988 from the same institute, was much prior to coming into force of NCTE Act, 1993 and its validity, legality or otherwise cannot be questioned. This certificate has not been considered by the Three Men Committee while rejecting the claim of the petitioner. Moreover, the petitioner had obtained his degree in graduation on 22.10.1983, which was much prior to his appointment in the school and the Three Men Committee has also failed to consider this aspect of the matter while treating the petitioner to be an intermediate at the time of his appointment. Therefore, the report which has been submitted by the Three Men Committee so far as the petitioner is concerned, has overlooked vital factual aspects with respect to qualification obtained by the petitioner and for which the petitioner cannot be penalized or made to suffer. Therefore, the report which has been submitted by the Three Men Committee so far as the petitioner is concerned, has overlooked vital factual aspects with respect to qualification obtained by the petitioner and for which the petitioner cannot be penalized or made to suffer. In the case of Sukhdeo Gope vs. State of Jharkhand, WP (S) No. 5161 of 2009, this Court had categorically given a direction to the respondents to recognize the services of the petitioner in light of the observations made in paragraph 33 of the judgment rendered by the Hon’ble Patna High Court and consequent to the order passed, the services had been recognized and consequential benefits paid. As a cumulative result of the discussions made hereinabove, this writ application is allowed and the matter is remitted back to the respondent no. 2 to pass necessary orders for recognition/ regularization of the services of the petitioner without being influenced by that part of the report of the Three Men Committee dated 30.09.2007, by which the claim of the petitioner was rejected. The respondent no. 2 shall also consider the consequential benefits payable to the petitioner in terms of letter dated 4th February, 1989 by taking into consideration the fact that similarly situated persons have already been given the benefit of the same. Before parting, it is clarified that this order is confined to the case of the petitioner only although prayer has been made with respect to teaching and non teaching staffs also of the school in question as the fact, which have been enumerated in the writ petition as well as the subsequent affidavits, is basically confined to the claim of the petitioner only. Pending I.As, if any, also stand disposed of.