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Jharkhand High Court · body

2017 DIGILAW 1923 (JHR)

Preetpal Kour v. State of Jharkhand

2017-11-10

S.N.PATHAK

body2017
ORDER : S.N. PATHAK, J. 1. Heard learned counsel for the petitioners and learned counsel for the respondents. The petitioners have approached this Court with a prayer for quashing the order dated 9.12.2016 (Annexure-8) issued by the Director, Primary Education, School Education and Literacy Development Department, 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 the date, of their initial date of joining/appointment. 2. Sans details, the facts as averred in the writ petition, in a nutshell is that these petitioners are said to have been appointed by the Managing Committee of Tinplat Khalsa Middle School, a Govt. Aided Minority School, on the sanctioned post of teacher in the scale of Rs. 9300-34800 with Grade Pay of Rs. 4200 vide letter dated 21.12.2013 (Annexure-5). After joining of the petitioners, the records relating to appointment of the petitioners were sent to the District Superintendent of Education for grant of approval of the services and the same was approved vide Memo No. 86 dated 9.1.2015 (Annexure-6). After getting approval of the District Superintendent of Education, the entire records relating to appointment and fixation of pay-scale of the petitioner, were sent to higher authorities. Thereafter, the matter was kept pending and ultimately all of a sudden, the Director, Primary Education, Govt. of Jharkhand vide letter dated 9.12.2016 returned the entire record relating to the petitioners and other teachers on the ground that the reservation rules has not been followed. Hence, this writ petition has been filed by the petitioners for redressal of their grievances. 3. Mr. A.K. Das assisted by Ms. Pooja Kumari, learned counsel appearing on behalf of the petitioners, submitted that the order dated 9.12.2016 is illegal, arbitrary and without jurisdiction. The respondents cannot impose any condition requiring the adoption of reservation policy in the matter of appointment of teachers in the Government Aided Minority Schools. 3. Mr. A.K. Das assisted by Ms. Pooja Kumari, learned counsel appearing on behalf of the petitioners, submitted that the order dated 9.12.2016 is illegal, arbitrary and without jurisdiction. The respondents cannot impose any condition requiring the adoption of reservation policy in the matter of appointment of teachers in the Government Aided Minority Schools. 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 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. 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 the vacant sanctioned posts 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. 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. Summing up his arguments, learned counsel submitted that this issue has already been decided by this Court in its judgment dated 3.11.2017 passed in W.P.(S) No. 5807 of 2016 and cases of the petitioners are similar to the said writ petition. 4. Per contra, counter-affidavit has been filed by the respondents. However, learned counsel appearing on behalf of the respondents very fairly submits that this case may be decided in view of order passed in W.P.(S) No. 5807 of 2016. 5. Be that as it may, having gone through the submissions of the parties, this Court is of the considered view that the case of the petitioners need consideration and the impugned order dated 9.12.2016 (Annexure-8) issued by Director, Primary Education, Govt. of Jharkhand is fit to be quashed and set aside on the following grounds. (I) Cases 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 make 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, 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. (III) The Hon'ble Patna High Court in the case of Sanjit Kumar vs. State of Bihar reported in Bihar Law Journals 807, 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". 6. Similar issue fell for consideration before this Court in W.P.(S) No. 6345 of 2016, W.P.(S) No. 2615 of 2017 and W.P.(S) No. 5807 of 2016 and this Court considering the judgment rendered by the Hon'ble Apex Court in case of Sindhi Education Society and Anr. vs. Chief Secretary, Govt. of NCT of Delhi & Ors. reported in (2010) 8 SCC 49 , allowed the writ petitions. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements, the impugned order dated 9.12.2016 (Annexure-8) issued by the Director, Primary Education, Govt. of Jharkhand is hereby quashed and set aside and the writ petition is allowed. The respondents are directed to grant all the 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.