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2018 DIGILAW 1502 (JHR)

Babita Maheshwari v. State of Jharkhand

2018-07-11

PRAMATH PATNAIK

body2018
JUDGMENT : Pramath Patnaik, J. 1. In the captioned writ application, the petitioners have sought for quashing the order dated 20.03.2013 pertaining to rejection of representation by the respondent no. 3 and further prayer has been made for issuance of writ of mandamus commanding upon the respondents for grant of approval over the fixation of salary as well as release of salary from the month of November 2009 till date with interest accruing thereon. 2. The brief facts, as revealed in the writ application, is that in pursuance to advertisement in the year 2007, applications were invited for appointment of teachers published in the newspaper by Sri Doranda Kanya Pathsala, which is a recognized minority school. The petitioners submitted their applications and were aged 42 years at the time of the advertisement. Again another advertisement was issued in the year 2008 for appointment of the aforesaid post. In the second advertisement it has been mentioned that persons who have already applied will not apply, therefore, petitioners did not apply pursuant to the second advertisement. Again another advertisement was issued in the year 2009 for appointment on the said post with the same condition that persons applied earlier need not apply. The respondent authority started the process of selection for appointment and accordingly, written examination as well as interview were conducted, in which, four persons were selected including the petitioners. Thereafter, the petitioners joined the said posts. It is relevant to mention that in the selection committee, the District Education Officer cum District School Inspector, Ranchi was also present. On the recommendation of the District Education Officer, Ranchi cum District School Inspector, Ranchi, the District Superintendent of Education granted provisional approval over the appointment of the petitioners as Assistant Teacher in regular Matric Trained Scale of Rs. 4500-7000/- vide officer order dated 23.07.2009 as per Annexure-4 and 4/1 to the writ application. The salary of the petitioners has been fixed accordingly and the salary fixation has been forwarded by the District Education Officer, Ranchi cum District School Inspector, Ranchi, before the Superintendent of Education, Ranchi for approval. Though the petitioners got their salary but subsequently the same has been withheld pending approval from the office of respondent nos. 2 and 3. Since the consideration for approval was kept pending, the petitioners represented before the respondent authority. Though the petitioners got their salary but subsequently the same has been withheld pending approval from the office of respondent nos. 2 and 3. Since the consideration for approval was kept pending, the petitioners represented before the respondent authority. Due to inaction on the part of the respondents, the petitioners approached this Court in W.P. (S) No. 4745 of 2012, which was disposed of on 21.09.2012 with direction to the respondents to consider the case of the petitioners and dispose of the representation within 90 days. In deference to the order passed by this Court, since the representation was not disposed of, a contempt petition being Contempt Case (Civil) No. 112 of 2013 was preferred by the petitioners, whereupon the impugned order dated 20.03.2013 vide Annexure-9 to the writ petition has been passed. Being aggrieved by the impugned order vide Annexure-9 to the writ petition, the petitioners left with no alternative, have been constrained to approach this Court under Article 226 of the Constitution of India for redressal of their grievances. 3. Learned counsel for the petitioners has strenuously urged that the action of the respondents in rejecting the representation vide Annexure-9, without considering the facts that there is no upper age limit, so far as appointment of teacher in a minority institution is concerned is without jurisdiction. Learned counsel for the petitioner further submits that the petitioners have been duly selected by a regular selection committee in pursuance to the advertisement, and the petitioners have been rendering services since June 2009 and their appointment has also been provisionally approved. So far as teachers appointed in a minority institution are concerned, the same is to be governed under Bihar Non-Government Primary Education (Control, Taken over) Rules, 1976 which is applicable for the State of Jharkhand, which makes provision under Section 7 for the Government to provide certain guidelines for the minority institution but under the provision of the said Act, no guidelines has yet been provided by the Government for the minority institution with regard to fixing the criteria relating to the maximum age in the minority institution as Assistant Teacher, therefore, the ground taken in the impugned order is thoroughly misconceived and cannot be a ground based on cogent reasons. Learned counsel for the petitioner further submits that even otherwise Jharkhand Primary School Appointment Rules, 2002 which has been amended in the month of August 2007 and pursuant to such amendment the maximum age limit for women to be appointed as Primary Teacher was enhanced up to 43 years and the petitioners were within the age at the time of applications in the year 2007. Therefore, assuming for the sake of argument but not conceding that the petitioners were within the permissible maximum age limit in the year 2007 when they applied in pursuance to advertisement published in newspaper on 10.03.2007 vide Annexure-1 to the writ application. Therefore, learned counsel for the petitioner submits that the impugned order suffers from gross illegality and impropriety being violative of Article 14 and 16 of the Constitution of India. 4. Learned counsel for the petitioners during course of hearing has referred to the decisions rendered by this Court in W.P. (S) No. 7741 of 2006, Mithilesh Kumar Pandey vs. State of Jharkhand & Others, W.P. (S) No. 5954 of 2009, Swaran Kaur vs. State of Jharkhand & Others and W.P. (S) No. 5193 of 20106, Smt. Saroj Sablok vs. State of Jharkhand & Others. In the aforesaid judgments it has been inter-alia held that there is no upper age limit for appointment in the minority institution. Learned counsel for the petitioner in order to buttress his submission has referred to the supplementary affidavit dated 27.06.2018, wherein letter dated 28.04.2012 has been annexed to the effect that Primary Education Directorate has given in writing that there is no maximum age limit prescribed for Government Aided Minority Primary School for appointment of teachers. 5. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents. In the counter affidavit, it has been submitted that the petitioners were over aged on the date of advertisement which was published on 10.03.2007. On this date the maximum age fixed for appointment for women candidates on the post of Assistant Teacher was 38 years but the petitioners namely Babita Maheshwari was 42 years 6 months and Anjali Kamari was 42 years 2 months and 9 days respectively on the date of publication of the advertisement. On this date the maximum age fixed for appointment for women candidates on the post of Assistant Teacher was 38 years but the petitioners namely Babita Maheshwari was 42 years 6 months and Anjali Kamari was 42 years 2 months and 9 days respectively on the date of publication of the advertisement. Therefore, it is obvious that the petitioners were over aged at the time of publication of the advertisement and the School Management ought to have rejected their applications on the basis of over age but on the contrary the School Management Committee entertained their application which shows its vested interest and undue favour to the petitioners. It has further been submitted that the School Management Committee did not invite fresh application from the petitioners when the maximum age for women was raised after amendment in Jharkhand Elementary School Appointment Rule, 2002 with effect from 23.08.2007. It has further been contended that the appointment of the petitioners was illegal and beyond the rules, therefore, the proposal of approval of pay fixation has been rejected vide order dated 20.03.2013, as per Annexure-A to the counter affidavit. 6. Learned counsel for the State apart from reiterating the submissions made in the counter affidavit, has assiduously defended the action of the respondents, in issuing the impugned order vide Annexure-9 by advancing her argument that the petitioners were over aged and, therefore, their appointments have rightly been not approved. Learned counsel for the State further submits that the maximum age limit is prescribed in the Government service and the petitioners' appointment on the threshold was infraction of the Government circular, therefore, respondents have rightly rejected the representation of the petitioners. 7. Having bestowed my anxious consideration to the rivalized submissions and on perusal of the record, I find that the petitioners were admittedly appointed as Assistant Teachers in pursuance to advertisement. The petitioners after undergoing the process of selection in which the representative of the Government was the member of the selection committee and after their appointment by the Managing Committee, their services has been provisionally approved. Since the petitioners have been appointed by the minority institution and there is no circular which envisages any upper age limit for teachers in minority institution, the ground taken in the impugned order not to approve the appointment of the petitioners on the ground of over age, in my considered opinion, cannot be legally tenable. 8. Since the petitioners have been appointed by the minority institution and there is no circular which envisages any upper age limit for teachers in minority institution, the ground taken in the impugned order not to approve the appointment of the petitioners on the ground of over age, in my considered opinion, cannot be legally tenable. 8. In this regard, it would be apposite to refer to Rule 18 of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Ordinance 1980. The relevant provisions of Rule 18 (3) (f) is quoted herein-below: "18 (3)(f) No grant shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age." The aforesaid provision makes it abundantly clear that so far as the teachers, appointed in Minority Secondary School, there is no minimum age prescribed for appointment of teachers in Minority Secondary School. 9. Moreover, Annexure-1 to the supplementary affidavit dated 27.06.2018, wherein letter dated 28.04.2012 has been annexed to the effect that Primary Education Directorate has given in writing that there is no maximum age limit prescribed for Government Aided Minority Primary School for appointment of teachers. 10. In view of the discussions made hereinabove, this Court is of the considered view that the impugned order cannot be sustained in the eye of law. Accordingly the impugned order vide Annexure-9 is quashed and set aside and the matter is remitted to the Director, Primary Education, Government of Jharkhand to pass appropriate orders with regard to approval of fixation of pay of the petitioners concerned strictly in accordance with law, keeping in view the existing circulars within a period of 8 weeks from the date of receipt/ communication of a copy of the order. 11. With the aforesaid direction, the writ petition stands allowed. Petition allowed.