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Jharkhand High Court · body

2017 DIGILAW 1854 (JHR)

Naveen Praveen Kindo v. State of Jharkhand

2017-11-03

S.N.PATHAK

body2017
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. The petitioners have approached this Court with a prayer for quashing the order dated 22.8.2016 as contained in Memo No. 1471 issued by the Director, Primary Education, Govt. of Jharkhand, whereby and whereunder the proposal for fixation of pay scale of the petitioners were rejected on the ground that the appointments of the petitioners have been made without following the reservation policy of the State. Further prayer has been made to direct the respondents for approval of fixation of pay scale of the petitioners and to pay the salary from their initial date of joining. Factual Matrix 3. Sans details, the facts as averred in the writ petition, in a nutshell is that these two petitioners are said to have been appointed by the Managing Committee of St. Aloysius Middle School, Ranchi, a Govt. Aided Minority School, on the sanctioned post of teacher pursuant to Advertisement dated 11.9.2011, (Annexure-2) vide appointment letters dated 27.9.2011, Annexures-3 and 3/1 respectively. After joining of the petitioners, the records relating to appointment of the petitioners were sent to the District Superintendent of Education vide letter No. 22/11 dated 16.10.2011 for grant of approval of the services. It is stated that the said appointment have been made upon the vacancies created upon retirement of two existing teachers namely, Victor Soreng and Sister Merry Kujur. When respondents were not giving heed to the representation and sitting tight over the matter, the petitioners have moved before this Hon'ble Court in W.P.(S) No. 4995 of 2013 for granting approval to the appointment of the petitioners and payment of salary after fixation of pay scale of the petitioners and the same was disposed of on 21.7.2014 after observing that it has been held by the Hon'ble Apex Court in case of Pramati Educational & Cultural Trust & Ors. VS. The Union of India & Ors. VS. The Union of India & Ors. reported in 2014(2) JLJR (SC)505 that the provisions of 2009 Act are inapplicable to the aided and unaided minority schools, which are covered under Article 30(1) of the Constitution and directed the petitioners to make representation through proper channel i.e. through the District Superintendent of Education, Ranchi to the Director, Primary Education, Human Resources Development Department, Government of Jharkhand for approval of their appointments annexing their propositional statements along with relevant documents and on receipt of the representations, the respondents was also directed to consider the same in accordance with law. Pursuant thereto, the petitioners filed representations before the respondent NO.3 but no action was taken by the respondents. The petitioners again moved before this Court in Cont. (Civil) Case No. 891 of 2014. Meanwhile the claim of the petitioners were rejected vide reasoned order dated 22.8.2016 passed by the respondents wherein it was stated that 'reservation policy was not followed in the recruitment process'. Accordingly, the said cont. case was disposed of with liberty to the petitioners to challenge the same in accordance with law. Hence, the petitioners knock the door of this Court by way of filing of the present writ application, challenging the order dated 22.8.2016. 4. Mr. A.K. Das, learned counsel appearing on behalf of the petitioners, submitted that the order dated 22.8.2016 is illegal, arbitrary and without jurisdiction. Learned counsel for the petitioners further submitted that since in the year 1981 there has not been any single instance where the minority institutions had been insisted to follow the reservation policy of the State Government nor there is a single instance where any approval of appointment was granted after ensuring the compliance of the reservation policy in minority institutions, the respondents are not justified in discriminating the case of the petitioners and adopting double standard in the case of the petitioners. Learned counsel for the petitioners further submitted that the insistence of the State Government to apply the reservation policy of the State Government in minority institution is an infringement of right guaranteed to the minority institutions under Article 30 of the Constitution of India. Learned counsel placed reliance in case of Pramati Educational & Cultural Trust & Ors. VS. The Union of India & Ors. Learned counsel placed reliance in case of Pramati Educational & Cultural Trust & Ors. VS. The Union of India & Ors. reported in 2014(2) JLJR (SC)505 wherein it has been held that reservation policy of the State Government is not applicable to the minority institutions whether aided or unaided. Learned counsel has further placed reliance in case of Ursuline Women's Teachers Training College VS. State of Jharkhand reported in 2006(1) JLJR 161 wherein it was held that State Government cannot insist the minority institution to follow the reservation policy. Learned counsel for petitioners further submitted that the petitioners have been appointed against a vacant sanctioned post and the petitioners had requisite qualifications for appointment as prescribed by the State Government, therefore, they are entitled for the salary with effect from the date of their initial joining. The impugned order is illegal and against the settled principles of law, is thus liable to be set aside. Learned counsel also submitted that the Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand vide letter dated 14.8.2014 informed the Director, Primary Education that there is no specific rule requiring compliance of reservation policy by minority institutions. The minority institutions have the right to administer the institution on their own, which is at Annexure-8 to the supplementary affidavit. Learned counsel for the petitioners further submitted that NCTE vide letter 26.4.2016 clarified that TET is an essential qualification for recruitment of primary school teachers however it may not be insisted for the teacher appointed by the Government Aided Minority Educational Institution, during the period from 23.8.2010 to 5.9.2012. 5. Per contra, counter-affidavit has been filed by the respondents. Learned counsel appearing on behalf of the respondents, vehemently opposed the contention advanced by the learned counsel for the petitioner and submitted that for purpose of approval of the preposition statement with respect to the petitioners, a Screening Committee was held on 22.7.2016 and upon verification of relevant records and documents, the said committee has recommended not to approve preposition statement as the reservation policy of the State Government was not followed in the appointment of the petitioners. The said order is based on departmental circular issued vide memo no. 709 dated 4.3.1993 wherein it is mentioned that reservation policy has to be mandatory followed in the matter of appointment. The said order is based on departmental circular issued vide memo no. 709 dated 4.3.1993 wherein it is mentioned that reservation policy has to be mandatory followed in the matter of appointment. Learned counsel further submitted that as per provision of the Reservation Act, 2001, reservation is applicable in Non-Government Aided Schools also. Therefore, the respondents have rightly rejected the claims of the petitioners. On such circumstances, learned counsel for the respondents submitted that the present writ petition is liable to be dismissed. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioners needs consideration and the impugned order dated 22.8.2016 as contained in Memo No. 1471 issued by Director, Primary Education, Govt. of Jharkhand is fit to be quashed and set aside on the following grounds: (I) Case of the petitioners have been rejected on the ground that policy of reservation/roster has not been followed at the time of appointment. The Hon'ble Apex Court, in the case of Sindhi Education Society and Another vs. Chief Secretary, Government of NCT of Delhi and Others reported in (2010)8 SCC 49 , has held that State imposed reservation for SC/ST Teachers in Minority School (aided or unaided) is impermissible. Minority schools have right to appoint persons compatible with their institution or culture so that right to conserve their socio economic cultural character is not violated. Merely receiving grant-in-aid per se would not made such school or institution "State" within the meaning of Article 12. (II) No appointment can be declared to be irregular or invalid only on the ground that appointing authority did not adhere to the procedure and obtained roster clearance, the petitioner cannot be penalised. (III) The Hon'ble Patna High Court in the case of Sanjit Kumar vs. State of Bihar reported in Bihar Law Journals 807 (sic), para-7 has held "in such situation if the appointing authority did not adhere to the procedure and obtain roster clearance, it would not be proper to penalise him. Besides foundational facts have not been stated by the respondents to suggest that the appointment of the petitioner was in excess of quota. In this view of the matter even if it is assumed that the roster clearance was not taken, in my opinion may not be sufficient justification to terminate services of the petitioner." 7. Besides foundational facts have not been stated by the respondents to suggest that the appointment of the petitioner was in excess of quota. In this view of the matter even if it is assumed that the roster clearance was not taken, in my opinion may not be sufficient justification to terminate services of the petitioner." 7. Similar issue fell for consideration before this Court in W.P.(S) No. 6345 of 2016, 2017(4) JLJR 297 and W.P.(S) No. 2615 of 2017, 2015(4) JLJR 486 and this Court considering the judgment rendered by the Hon'ble Apex Court in case of Sindhi Education Society and Am. VS. Chief Secretary, Govt. of NCT of Delhi & Ors. reported in (2010)8 SCC 49 , allowed the writ petitions. 8. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements, the impugned order dated 22.8.2016 as contained in Memo No. 1471 issued by the Director, Primary Education, Govt. of Jharkhand is quashed and set aside and the writ petition is allowed. The respondents are directed to release all consequential benefits to the petitioners within a period of eight weeks from the date of receipt/production of a copy of this order. Needless to say that the respondents shall release entire benefits in favour of petitioners to which they are entitled i.e. arrears of salary along with current salary and other benefits as a result of quashment of impugned order.