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2018 DIGILAW 182 (JHR)

Sanjesh Mohan Thakur v. State of Jharkhand

2018-01-19

PRAMATH PATNAIK

body2018
JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 12.3.2015 and to issue direction upon respondent No. 2 to fix and determine the pay-scale of the petitioner and further prayer has been made for direction upon respondents to make payment of arrear of salary as well as current salary of the petitioner in pursuance to fixation of salary/pay-scale. 2. The facts, in brief, is that in pursuance to advertisement published in daily newspaper "Prabhat Khabar" on 28.1.2001, the petitioner applied and was selected for the post of Assistant Teacher in Doranda Girls Middle School, Ranchi and accordingly, he submitted his joining on 1.3.2001, which was duly approved by D.S.E., Ranchi vide office order dated 27.7.2001, with certain conditions. Thereafter, headmistress, who was one of the members of the School Managing Committee, sent a letter to DSE, Ranchi requesting therein to send approval with regard to fixation and determination of salary. In turn, the respondent No.3-DSE, Ranchi sent a letter dated 20.3.2002 to Director, Primary Education for fixation of pay the petitioner. Besides, the Managing Committee of the school also sent several letters to Director, Primary Education to determine and fix the pay-scale/salary of the petitioner. But, when no response came from the side of respondents-authorities, the petitioner knocked the door of this Court by way of filing WP(S) No. 6313 of 2004, which was disposed of vide order dated 9.12.2004 and later on order was modified vide order dated 3.1.2005 whereby petitioner was directed to represent before the Director, Primary Education, Ranchi, who shall pass appropriate order. Pursuant thereto, the petitioner filed representation dated 17.1.2005 before respondent No.2-Director, Primary Education, which was rejected vide order dated 12.3.2005. 3. Being aggrieved by the impugned order dated 12.3.2005 passed by Director, Primary Education-respondent No.2, the petitioner left with no alternative, efficacious and speedy remedy has approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Learned counsel for the petitioner submitted that petitioner possesses the degree of C.P.Ed and D.P.Ed, and it is established principle of law that a candidate who possesses the diploma in D.P.Ed shall be treated to be equivalent to trained B.Ed teacher and a candidate who got diploma in C.P.Ed will be equivalent to matric trained teacher. 4. Learned counsel for the petitioner submitted that petitioner possesses the degree of C.P.Ed and D.P.Ed, and it is established principle of law that a candidate who possesses the diploma in D.P.Ed shall be treated to be equivalent to trained B.Ed teacher and a candidate who got diploma in C.P.Ed will be equivalent to matric trained teacher. Besides, letter dated 17.2.1981 issued by Special Secretary-cum-Director (Primary), Bihar specifically mentions that 5% seats has been reserved for appointment of physical trained teacher. Hence, on the ground of qualification, his appointment cannot be said to be bad in law. So far other ground for rejection of proposal of fixation of pay-scale is concerned, it is pertinent to note here that one Seema Paul, who was appointed in the same school, and her appointment was also questioned on the ground that departmental representative had not attended in selection process, this Court in W.P. (S) No. 2547 of 2009 quashed the impugned order vide order dated 23.4.2014 and directed to take fresh decision in the matter without treating the absence of departmental representative in the Selection Committee. Hence, it is a misleading statement made by the respondents that no post of physical teacher is sanctioned in the said school. As a matter of fact, for appointment of a teacher in primary school, the requirement and eligibility is only trained teacher and subject-wise teacher need not be appointed. Hence, the appointment of the petitioner at no stretch of imagination can be said to be faulted with in any manner. Furthermore, after satisfactory completion of probationary period of one year, his services became permanent on the said post and he is working on the said post till date without any demur and till date his appointment has not been cancelled. 5. In support of this submission, learned counsel for the petitioner referred to a decision rendered in the case of Dhananjay Malik and others v. State of Uttaranchal and others as reported in (2008) 8 SCC 171. 6. Learned counsel for the respondent No.5-Secretary, School Managing Committee supporting the claim of the petitioner submitted that as per relevant rule meant for appointment of teachers in Aided Non-Government Linguistic Minority School, the selection process was made and within prescribed time the name of the petitioner was sent for its approval before D.S.E., Ranchi and D.S.E., Ranchi rightly approved the joining of the petitioner. It has further been submitted as per circular dated 17.2.1981, the Managing Committee of the School was bound to fill up one sanctioned post amongst Physical Education Teacher, accordingly they advertised for the same and appointed the petitioner. It has further been submitted that the Director, Primary Education rejected the claim of the petitioner on the basis of notification dated 30.9.1991, which is no way applicable in the matter of appointment of teachers in Non-Government Aided School and is applicable in the matter of employment in Government School. 7. As against this, learned counsel for the respondent-State submitted that petitioner was illegally appointed by the Secretary of the said school in view of the fact no post of physical trained teacher-cum-instructor in sanctioned in the said school and furthermore, in this regard, the Human Resource Development Department, Government of Bihar vide letter dated 4.3.1993 has made it clear that only trained candidates are to be appointed to the post of Assistant Teacher in non-Government aided including minority school. Besides, no departmental representative was present during selection process of the petitioner rendering the appointment of the petitioner null and void in the eye of law. So far claim of the petitioner with regard to equity with one Sulekha Sen is concerned, it has been submitted that she was holding the qualification of B.A. Plus B.Ed and she was appointed against the sanctioned strength wherein the petitioner did not possess the qualification as per the norms of the department. In such circumstances, where the petitioner has neither requisite qualification nor was appointed against the sanctioned post, the impugned order needs no interference by this Court. Learned counsel for the respondents further submits that DSE, Ranchi while recommending the name of the petitioner vide office order dated 27.7.2001 had made it clear that the appointment of the petitioner is provisional subject to verification of documents. 8. Having heard learned counsel for the parties at length and on perusal of record, the first issue which is to be decided by this Court is whether the petitioner possesses the requisite qualification as per the advertisement or not. It is not disputed nor it is questioned by the respondents-State with regard to contents of advertisement. 8. Having heard learned counsel for the parties at length and on perusal of record, the first issue which is to be decided by this Court is whether the petitioner possesses the requisite qualification as per the advertisement or not. It is not disputed nor it is questioned by the respondents-State with regard to contents of advertisement. From plain reading of advertisement dated 28.1.2001, it appears that school required "Trained Graduate or CPED passed Teacher proficient in Mathematics and English with five years experience" and age of the candidate should be below 35 years. From the pleadings available on records, it appears that the petitioner possess both the qualification, i.e., he is having B.A. Degree and he also possesses C.P.Ed/D.P.Ed. Furthermore, the advertisement only asks for proficiency in Mathematics and English and it no where said B.Ed with Mathematics or any other degree. Furthermore, from perusal of appointment letter, it appears that the petitioner was appointed on the post of Assistant Teacher, against vacancy arising out of retirement of one Sulekha Sen, in Matric Trained Scale, which no where requires specialization in any subject rather as per need it required proficiency in Mathematics and English. It is true that initially provisional appointment was made and even DSE, Ranchi made provisional recommendation subject to verification of document but at no point of time, the documents submitted by the petitioner was found to be fake. Hence, one of the grounds for refusal of grant of pay-scale, i.e., the petitioner does not have requisite qualification has no leg to stand. So far other ground for rejection of prayer for grant of salary/pay-scale that no departmental representative attended the selection process, which is a mandatory provision, in case of such minority school is concerned; for similar issue, one Seema Paul, who was working the same school approached this Court in W.P.(S) No. 2547 of 2009 and this Court vide order dated 23.4.2014 quashed the impugned order and directed the respondents to take fresh decision in the matter without treating the absence of departmental representative in the Selection Committee. 9. 9. As a logical sequitur of the aforesaid facts, reasons and judicial pronouncements, the impugned order dated 12.3.2005 is hereby quashed and set aside and respondent No.2 is directed to take a fresh decision with regard to fixation of pay and salary of the petitioner within a period of eight weeks from the date of receipt/production of copy of this order. It is made clear that after taking such decision, the respondents are further directed to pay arrears of salary as well as current salary within a period of twelve weeks thereafter. 10. With the aforesaid observations and directions, the writ petition stands allowed. Petition allowed.