Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1845 (JHR)

Milat Academy High School, Jharia, through its President Sajid Hussain v. State of Jharkhand

2018-08-14

ANIRUDDHA BOSE, ANIRUDDHA BOSE, D.N.PATEL, D.N.PATEL

body2018
JUDGMENT : 1. By consent of learned Advocates for the parties, we are taking up both the appeals together for hearing. 2. The appellants before us is a Minority Institution running a school. The core dispute in both these appeals is over granting approval to appointment of an Assistant Teacher of the school involved. The facts are not much in dispute. The writ petitioner was appointed by the appellant Institution as an Assistant Teacher on 4th March, 1991. Approval, however, did not come at the initial stage from the State Government. In such circumstances and for that reason, his service was terminated by the appellants. There had been subsequent litigations and eventually the service of the concerned Teacher, Respondent No.6 in both the appeals, was approved on 17th January, 2009 by the State Government. Both the Institution and the Teacher, however, challenged the action of the State Government. The Institution questioned legality of approval and the Teacher challenged the earlier disapproval. The original writ petition of the Teacher was withdrawn. In the second writ petition, which was registered as W.P.(S) No. 3275 of 2010, the Respondent No. 6 prayed for release of his salary after joining the Institution. Ultimately, the second writ petition of the Respondent No. 6 and the writ petition of the Institution, which was registered as W.P.(S) No. 581 of 2010, were heard and disposed of by a common judgment and order, dated 16th January, 2018, by the learned First Court with the following observations and directions: “10. Having heard counsel for the parties and going through records of the case I am of the considered opinion that case of Md. Jamaluddin Ashrafi needs consideration. Admittedly, Md. Jamaluddin Ashrafi was appointed by the Managing Committee of the School after following the rules and procedures for such appointment and was duly paid his salary up to the year 1997. After order dated 03.04.2002, his appointment was declared to be prima facie genuine and directions had been made for taking steps for approval of his services. The action of the School-Management is not tenable in the eye of law in not allowing the petitioner to continue in service on the ground that Md. Jamaluddin Ashrafi did not possess the requisite qualification. The respondents-State had admitted that appointment of Md. Jamaluddin Ashrafi was in accordance with law and he did possess the requisite qualification for appointment as an Assistant Teacher. Jamaluddin Ashrafi did not possess the requisite qualification. The respondents-State had admitted that appointment of Md. Jamaluddin Ashrafi was in accordance with law and he did possess the requisite qualification for appointment as an Assistant Teacher. The certificates of Md. Jamaluddin Ashrafi was duly verified by Madarsa Board on the requisition of the respondents-State and found to be genuine. The arguments advanced by learned counsel for the School-Management is totally misconceived and not sustainable in the eyes of law. Appointment of the petitioner is fully in accordance with law and the respondents are directed to allow Md. Jamaluddin Ashrafi to put his attendance and work and provide him current as well as arrears of salary and all consequential benefits on the following grounds: (i) Md. Jamaluddin Ashrafi was appointed following the rules, procedures and law. Said appointment was never challenged by the respondents and he continued to work and was also allowed salary till the year 1997; (ii) On the fake and flimsy grounds, a decision was taken that appointment has not been approved as petitioner is not having requisite qualification; (iii) The certificates of Md. Jamaluddin Ashrafi was duly verified by Madarsa Board and was found to be genuine, there is no occasion not to allow him to work as an Assistant Teacher of Persian/Urdu as he was having requisite qualification, which has been found to be genuine after due verification, which is also evident from Annexure-A and B to the Supplementary Counter Affidavit dated 12.12.2017 filed in W.P.(S) No. 581 of 2010. 11. It is very surprising when petitioner was appointed by the Managing Committee of the School after due process of law and was allowed salary etc. and pursuant to the order dated 03.04.2002, his appointment has been declared to be prima-facie genuine and direction had been made for taking steps for approval of his service, how School Management can harass him on flimsy grounds. It is very surprising as to how the School Management can stop salary of Md. Jamaluddin Asharfi even after order under Memo No. 182, dated 17.01.2009, issued by the Director, Secondary Education, Human Resources Development Department, Government of Jharkhand whereby services of petitioner had been duly approved and his name finds place at Sl. No. 55 of the said list and his appointment had been approved with effect from 22.06.1997. Further the Letter no. Jamaluddin Asharfi even after order under Memo No. 182, dated 17.01.2009, issued by the Director, Secondary Education, Human Resources Development Department, Government of Jharkhand whereby services of petitioner had been duly approved and his name finds place at Sl. No. 55 of the said list and his appointment had been approved with effect from 22.06.1997. Further the Letter no. 1608, dated 28.05.2009, issued by the Deputy Director, Secondary Education, Government of Jharkhand, Ranchi also clearly speaks that services of Md. Jamaluddin Asharfi has been duly approved by the authorities and as such, he cannot be harassed by the President and Headmaster (In-charge) of Millat Academy High School, Jharia. 12. As a cumulative effect of the aforesaid facts and circumstances, the W.P.(S) No. 581 of 2010 is dismissed and W.P.(S) No. 3275 of 2010 is allowed. The School Management as well as President and Headmaster (In-Charge) of Millat Academy High School, Jharia are directed to allow Md. Jamaluddin Asharfi to put his attendance in the attendance register with immediate effect and further take immediate steps for payment of regular as well as arrears of salary to him within a period of three months from the date of receipt/production of a copy of this order. It is made clear that the entire service period during which petitioner was not allowed to work, shall also be treated as period spent on duty.” 3. The Institution’s main grievance is that the service of the Respondent No. 6, whom they only appointed, ought not to have been approved. In L.P.A. No. 141 of 2018, the Institution questions legality of the decision of the learned First Court dismissing their writ petition. L.P.A. No. 138 of 2018 has been filed by the Institution in respect of directions given in respect of the writ petition of the respondent no.6 registered as W.P.(S) No. 3275 of 2010. The learned First Court allowed the writ petition directing the school management to permit him to put his attendance as also to release his arrear and current salary. The Institution’s writ petition, being W.P.(S) No. 581 of 2010 was dismissed. The learned First Court accepted the stand of the State that the respondent no.6 was appointed against a sanctioned post and his records were verified by the competent body, being the School Service Board at the material point of time. That was essentially a fact finding exercise undertaken by the competent authority. The learned First Court accepted the stand of the State that the respondent no.6 was appointed against a sanctioned post and his records were verified by the competent body, being the School Service Board at the material point of time. That was essentially a fact finding exercise undertaken by the competent authority. 4. The financial obligation, so far as payment of salary to the Respondent No.6 is concerned, falls on the State Government. They have not preferred any appeal against the decision of the learned First Court. As regards the stand of the Institution, there is a strong element of approbation and reprobation on their part as it is their own appointment they are seeking to invalidate now. In any event, no material has been produced before us by the Institution on the basis of which such approval ought to be held invalid. The learned First Court in the judgment under appeal has dealt with this question in detail. As we have concurred with the learned First Court that approval given to service of the respondent no.6 was valid, the grievance of the Institution in L.P.A. No. 138 of 2018 does not survive. 5. We find no reason to interfere with the finding and the reasoning of the learned First Court. We, accordingly, dismiss both the appeals with costs of Rs.2,500/- each, which is to be paid, on consent of the respondents, to the Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, Ranchi, towards the Juvenile Justice Fund. This amount will be deposited in the Bank Account No. 3734498462-5, Jharkhand Juvenile Justice Fund, State Bank of India, Project Bhawan, Hatia, Ranchi, either by cheque or bank draft, within a period of six weeks from today, towards Juvenile Justice Fund. This amount shall be utilised for the welfare of the juveniles as per the duties assigned to the State under the Juvenile Justice Act. 6. A copy of this order will be sent to: (a) The Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, Ranchi (b) The Member Secretary, Jharkhand State Legal Services Authority, Nyaya Sadan, Doranda, Ranchi I.A. No.2555 of 2018 (in L.P.A. No.141 of 2018), I.A. No.2544 of 2018 (in L.P.A. No. 138 of 2018) 7. In the light of dismissal of the Appeals, these Interlocutory Applications also stand dismissed.