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2018 DIGILAW 2293 (JHR)

Rekha Mandal v. State of Jharkhand

2018-10-22

APARESH KUMAR SINGH

body2018
JUDGEMENT : Heard senior counsel for the petitioners and the State. 2. These three writ petitioners were serving as para-teachers but had applied for being appointed as Assistant Teacher in the non-para category in the District of Ranchi under Advertisement No.01/2015 issued by the District Superintendent of Education, Ranchi- respondent no.4. They were also appointed as such vide appointment letters at Annexure-5 and 6 series dated 13th April 2017 and 6th February 2017 issued by the respondent no.4. However, a show-cause was issued upon them asking them to reply as to why their services be not terminated on the ground that being teachers belonging to the para-category, they have applied for and availed of appointment in the non-para category in teeth of Rule 14 of the Jharkhand Primary School Teachers Appointment Rules, 2012 (as amended in 2014) and Clause-12 of the advertisement. Petitioners replied to the show-cause but their services were terminated vide orders contained at Annexure-12, 13 and 14 dated 17th July 2017 bearing different memo numbers issued by the same respondent no.4. As per the impugned order their appointments were in teeth of the aforesaid Rule and the conditions of the advertisement, as such void ab-initio. 3. The question involved in the present writ petition is whether petitioners who were working as para-teacher could have been appointed in the non-para category or not and whether their appointments were in teeth of the relevant Rules or the conditions of the advertisement. According to the learned senior counsel for the petitioners, the issue is no longer res-integra in view of the judgment rendered by the Division Bench of this Court in L.P.A. No.186/2017 and other analogous L.P.A.s dated 11th May 2018 (Annexure-16 to the writ petition). He submits that similar cases have also been decided by the Coordinate Bench of this Court in favour of the petitioners whose services were also terminated on the same ground such as W.P.(S) No.5158/2017 vide judgment dated 25th July 2018. 4. No counter affidavit has been filed as yet by the State. However, learned counsel for the State does not dispute that the question involved is already decided by the learned Division Bench of this Court in L.P.A. No.186/2017. 5. 4. No counter affidavit has been filed as yet by the State. However, learned counsel for the State does not dispute that the question involved is already decided by the learned Division Bench of this Court in L.P.A. No.186/2017. 5. Considered the submissions of the counsel for the parties in the light of the relevant facts noted above and the pronouncement of this Court rendered by the learned Division Bench as also by the Co-ordinate Bench of this Court referred to above. 6. The learned Division Bench in its judgment dated 11th May 2018 in the case of Pawan Singh Choudhary has dealt with the matter in paragraph-4 and 6 in the following manner :- “4. It appears from the arguments canvassed by the State of Jharkhand that as the original petitioners are working as Para Teachers they must apply or they shall be deemed to have applied, under reserved category quota for Para Teachers. 7. This argument cannot be accepted for the following reasons: (a) There is no rule, regulation or Government Circular or Government Policy that those candidates, who are already working as Para Teachers, must apply under the reserved category meant for para teachers. (b) There is no such condition attached with the public advertisement in question that those candidates, who are working as Para Teachers, must apply for the reserved category seats meant for Para Teachers. (c) There is no circular issued by the Respondent State of Jharkhand that those who are working as Para Teachers and applying for the post of Assistant Teachers must apply as reserved category of Para Teachers. (d) On the contrary, it depends upon the confidence of the candidate to apply under reserved category or not to apply under the reserved category and there is no bar for such candidates that they cannot apply under the General category, which is meant for Non Para Teachers. (e) Thus, it appears that those, who have applied for a particular district as non Para Teacher category candidate, they are confident enough not take advantage of the age relaxation or any other type of relaxation meant for the Para Teachers given by the Government. (f) Thus, the appellants (original petitioners of both the writ petitioners) were confident enough to have applied without taking any relaxation meant for Para Teachers and they have been selected for those districts for which they have applied. (f) Thus, the appellants (original petitioners of both the writ petitioners) were confident enough to have applied without taking any relaxation meant for Para Teachers and they have been selected for those districts for which they have applied. Even otherwise also, they have cleared Teachers Eligibility Test and they are seeking employment on the basis of their own merit without availing relaxation or concession of the quota meant for Para Teachers. Thus, it appears that the original petitioners are confident candidates and unnecessarily the State of Jharkhand is considering them as candidates under reserved category meant for Para Teachers. This is not permissible in the eye of law. 6. Counsel for the respondent State has placed reliance upon the decision of the Hon'ble Supreme Court in K.DURAISAMY AND ANOTHER versus STATE OF T.N. AND OTHERS reported in (2001) 2 SCC 538 . The aforesaid decision is not helpful to the respondents mainly for the reason that: (a) Looking to Paragraph No. 3 of the aforesaid decision, it appears that the facts of the present case is entirely different due to the fact that in the reported decision, cited by the respondents, there was Government circular or governmental orders, whereas, as stated herein above, there is neither any rule or regulation or condition attached with the public advertisement in question nor any governmental circular to the effect that those candidates, who are working as Para Teachers, must apply under the reserved category meant for Para Teachers. Therefore, ratio propounded by the Hon'ble Supreme Court in the aforesaid case is not helpful in absence of any rule, regulation and governmental order and State of Jharkhand cannot compel that those who are working as Para Teachers must apply under the reserved category meant for Para Teachers. (b) Original petitioners, who have never taken any advantage of relaxation of age etc. meant for the Para Teachers, in fact, are confident petitioners. (c) For Para Teachers, the relaxation in age has gone up to 50 years and the age of retirement is 60 years, but, these confident original petitioners are not concerned with the age relaxation.” 7. The impugned judgment passed by the learned Single Judge were accordingly set aside by the learned Division Bench. The respondents were directed to initiate the counselling of the original petitioners as early as possible. In the case of Ranjeet Das & Ors. The impugned judgment passed by the learned Single Judge were accordingly set aside by the learned Division Bench. The respondents were directed to initiate the counselling of the original petitioners as early as possible. In the case of Ranjeet Das & Ors. W.P.(S) No.5158/2017 the petitioners were terminated from service on the ground that they had been appointed under non-para teacher category. Similar grounds were taken for terminating their services. The Coordinate Bench of this Court presided by Hon’ble Mr. Justice Shree Chandrashekhar dealt with the issue in the following manner :- 7. This precisely was the argument advanced on behalf of the respondents in L.P.A. No. 186 of 2017 and L.P.A. No.199 of 2017. However, this argument did not find favour with the Hon'ble Division Bench and by an order dated 11.05.2018 the Letters Patent Appeals have been allowed. The Hon'ble Division Bench has held that under the rules or in the advertisement there is no stipulation under which an applicant working as Para Teacher is not eligible to seek appointment under the general category. Even otherwise also such a stipulation would have been contrary to the constitutional mandate under Article 14 and 16 of the Constitution of India. An applicant who is otherwise eligible, may be he is a reserved category candidate, cannot be denied appointment under general category vacancy. 9. On account of illegal termination of the petitioners from service, in my opinion, they cannot be denied benefits of continuity in service. On their reinstatement in service they shall be deemed to be continuing in service with effect from their initial date of appointment and whole of this period shall be included in their service. On payment of salary to the petitioners for the period during which they have been kept out of service, contention raised is that at least 25% back-wages may be granted to the petitioners. On admitted facts, an inference that the petitioners have been prevented from discharging their duty can be justifiably drawn from the date of decision in the aforesaid Letters Patent Appeals. After 11.05.2018 when the order passed in W.P.(S) No.6031 of 2015 and W.P.(S) No.173 of 2016 was set-aside by the Hon'ble Division Bench, the petitioners were entitled for reinstatement in service and accordingly, it is ordered that they are entitled for salary between 12.05.2018 till they are actually reinstated in service.” 8. After 11.05.2018 when the order passed in W.P.(S) No.6031 of 2015 and W.P.(S) No.173 of 2016 was set-aside by the Hon'ble Division Bench, the petitioners were entitled for reinstatement in service and accordingly, it is ordered that they are entitled for salary between 12.05.2018 till they are actually reinstated in service.” 8. The learned Single Judge has while setting aside the order of termination of the petitioners therein also directed their reinstatement. It was also ordered that they are entitled for salary between 12th May 2018 i.e. the date of the order passed in L.P.A. No.186/2017 till they are actually reinstated in service. There appears to be no distinguishing features in the present case from that decided in W.P.(S) No.5158/2017. These petitioners have also been terminated from service vide the impugned order dated 17th July 2017 on the same ground that they availed of appointment in non-para teacher category though they were serving as para-teachers, in teeth of Rule 14 of the Jharkhand Primary School Teachers Appointment Rules, 2012 (as amended 2014) and Clause-12 of the advertisement. As the legal issue raised herein is not disputed and the grounds of termination are also evident from the face of the impugned order, the impugned order at Annexure-12, 13 and 14 are quashed. Petitioners shall be reinstated in service. 9. Petitioners have also made a claim for payment of salary for the intervening period. Learned counsel for the petitioners by referring to para-33 of the writ petition submits that salary for the period they had worked till their dismissal have also not been paid. 10. The instant claim of the petitioner is dependent upon scrutiny of actual discharge of their duty on the post till the date of dismissal. In case on scrutiny it is found that they had actually discharged their duties, the salary for the period till the date of dismissal should be paid to them. Apart from the above, the respondents would also release salary from the date of passing of the order in L.P.A. No.186/2017 till they are actually reinstated in service. Writ petition stands allowed in the aforesaid manner.