Pradeep Kumar Singh, son of Sri Devendra Narayan Singh v. State of Jharkhand
2018-01-30
PRAMATH PATNAIK
body2018
DigiLaw.ai
JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 28.01.2009 whereby respondent no. 3-Director, Secondary Education declared the appointment of the petitioner illegal and further prayer has been made for direction upon the respondents to pay the salary after approving the services of the petitioner. 2. The facts, in brief, is that pursuant to the application submitted by the petitioner for appointment on the post of teacher in Punjab Kanya Uchcha Vidyalaya, Refugee Colony, Jamshedpur, which is a government aided minority school, his case was considered by the Managing Committee of the school and appointment letter dated 12.07.1982, on temporary basis, was issued in favour of petitioner under the signature of Secretary of the said school. It is averred that by passage of time, vide letter dated 04.05.1989, the appointment of the petitioner was confirmed and principal of the said school vide letter dated 02.06.1989 wrote letter to D.S.E., Singhbhum at Chaibasa for confirmation of services of the petitioner, who in turn forwarded the matter to Director, Human Resources Department for needful vide its letter dated 31.07.1989. Pursuant thereto, the Director, Secondary Education, Bihar wrote letter dated 31.12.1990 to the Secretary, School Service Board to give approval to the appointment of the petitioner, which has already been done by Managing Committee of the said school, but, the respondents-authorities sat over the matter. However, when salary of the petitioner was not paid, the Secretary of the said school wrote letter dated 20.12.2002 to the D.E.O, Singhbhum, to release the salary, but it did not evoke any response. Under the circumstances, the petitioner left with no option, approached this Court by filing W.P. (S) No. 5483 of 2002, which was disposed of vide judgment dated 03.07.2008 remitting the matter to respondent-authority for reconsideration and quashed order dated 11.02.2008 passed by Director, Secondary Education which was passed during pendency of that writ application, whereby approval of services of the petitioner was refused on the ground that he was not appointed after following due procedure. Thereafter, the petitioner represented before the respondents-authorities, who passed impugned order dated 28.01.2009 whereby respondent no. 3-Director-Secondary Education declared the appointment of the petitioner to be illegal. 3.
Thereafter, the petitioner represented before the respondents-authorities, who passed impugned order dated 28.01.2009 whereby respondent no. 3-Director-Secondary Education declared the appointment of the petitioner to be illegal. 3. Learned counsel for the petitioner submitted that the Managing Committee, which is competent to appoint teachers in case of minority schools, after due process has appointed the petitioner in the year 1982 on temporary basis and in the meantime advertisement was published for the post of permanent teachers in the year 1989 and after complying all formalities, the case of the petitioner was considered and his services was confirmed w.e.f 25.02.1989 by the Managing Committee. Learned counsel for the petitioner submitted with vehemence that in case of Government aided minority school, Managing Committee is the competent authority to appoint teachers against vacant post, and it is nowhere the case of the respondents that at any point of time, any certificate produced by the petitioner was fake or he did not possess requisite qualification but even then his services was not approved and even salary was not paid. Learned counsel for the petitioner further submitted that petitioner is rendering his services since from the very date of initial appointment till date, which fact is reflected from the attendance register, counter signed by the principal of the said school. Learned counsel for the petitioner further submitted that since the petitioner has been validly appointed, he is entitled to receive the salary and such a right to receive salary tantamounts to right hold property, falling within Article 300-A of the Constitution of India. Learned counsel for the petitioner further submitted that observation of the Court that “…. In my opinion at best it can be said to be a case of irregularity and not illegality and therefore, petitioner’s case for approval of his appointment requires consideration” made in order dated 03.07.2008 passed in W.P. (S) No. 5483 of 2002 has not been taken in right prospective. 4. As against this, learned counsel for the respondents submitted that, the petitioner did not possess the requisite qualification at the time of appointment and none of the formalities were followed by the Managing Committee while appointing the petitioner; as such the respondent no. 3 denied approval of appointment of the petitioner.
4. As against this, learned counsel for the respondents submitted that, the petitioner did not possess the requisite qualification at the time of appointment and none of the formalities were followed by the Managing Committee while appointing the petitioner; as such the respondent no. 3 denied approval of appointment of the petitioner. It has further been submitted that the issuance of appointment letter was beyond the prescribed procedure and was not approved by Vidyalaya Sewa Board; as such appointment cannot be considered as legal and valid. Referring to supplementary counter affidavit, learned counsel for the respondents submitted that petitioner’s school was declared as minority school vide notification dated 10.01.2008 from the date of its issuance and the said school is a non-aided school. It has further been submitted that since the petitioner was untrained till his appointment on permanent post on 25.02.1989, as such under the service Rules of 1983, his claim was rightly rejected. 5. Having heard learned counsel for the parties at length and on perusal of the documents available on record, I am of the considered view that petitioner has been able to make out a case for interference for the following facts, reasons and judicial pronouncements: (i). From perusal of Annexure 7 issued by Secretary of the said school, it appears after resignation tendered by one Sri S.K. Jha, in the year 1981, who was working as Assistant Teacher, Math in the said school; the petitioner was initially appointed on 12.07.1982, on temporary basis against that post, on the basis of application made by him, though admittedly at the relevant point of time he was not possessing the teachers’ training certificate. Thereafter, in the year 1989, when regular vacancies arose, the petitioner participated in the process of selection i.e. on the basis of interview, he was selected/made permanent against the vacant post, as evident from Annexure 6 and accordingly, appointment letter dated 25.02.1989 was given to the petitioner. From plain reading of Annexure 6, it further appears that at time of getting permanent status, the petitioner was possessing the teachers training certificate; hence the Managing Committee decided to get the services of the petitioner confirmed from 25.02.1989 and forwarded proposal to the higher authorities seeking approval of his services.
From plain reading of Annexure 6, it further appears that at time of getting permanent status, the petitioner was possessing the teachers training certificate; hence the Managing Committee decided to get the services of the petitioner confirmed from 25.02.1989 and forwarded proposal to the higher authorities seeking approval of his services. In sum and substance, it appears that the petitioner was appointed against vacant post and his appointment was made by the Managing Committee, which is said to be the competent authority to make appointment of teachers and further he was possessing all requisite qualification as on 25.02.1989, the date from which the petitioner is seeking his salary on account of fact that his services were confirmed by fresh selection process. (ii).Furthermore, the principal of the said school immediately after permanent appointment of the petitioner vide letter dated 02.06.1989 wrote letter to D.S.E., Singhbhum at Chaibasa for confirmation of services of the petitioner but it took about two decades in disapproving his services vide order 11.02.2008 that too when the petitioner approached this Court in W.P. (S) No. 5483 of 2002 for payment of his salary. In this regard, it would be pertinent to note here that during the petitioner continued to work on the said post, and this fact has not been denied by the respondents. (iii).From perusal of record, it further appears that in first round of litigation, this Court after taking stock of all the facts has in unequivocal terms has opined while passing order dated 03.07.2008 in W.P. (S) No. 5483 of 2002 that “…. In my opinion at best it can be said to be a case of irregularity and not illegality and therefore, petitioner’s case for approval of his appointment requires consideration”. But the respondents-authorities did not consider in its right prospective and rejected the claim of the petitioner on some technical ground. The word ‘consider’ has a great significance and authority ought to have considered the view taken by this Court while remitting the matter for reconsideration. View of this Court gets fortified by the decision rendered in the case of Chairman, Life Insurance Corporation of India and Ors. vs. A. Masilamani as reported in (2013) 6 SCC 530 , relevant paragraph 19 is quoted herein below: “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”.
vs. A. Masilamani as reported in (2013) 6 SCC 530 , relevant paragraph 19 is quoted herein below: “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind.” 6. As a logical sequiter of the aforesaid facts reason and judicial pronouncements, the impugned order dated 28.01.2009 whereby respondent no. 3-Director, Secondary Education declared the appointment of the petitioner illegal, is hereby quashed and set aside. So far, contention of the respondents which has been brought on record for the first time by filing supplementary counter affidavit dated 07.11.2017 that petitioner’s school was declared as minority school vide notification dated 10.01.2008 from the date of its issuance and further said school is a non-aided school, is concerned, it is to be looked by the respondents-authorities, how other teachers have been paid salary and treating at par with other teachers, pass appropriate order for approval of his services from the date of his appointment made on 25.02.1989. 7. It is needless to mention here that after getting approval of his services, the respondents-authorities shall pass necessary order with regard to payment of arrears of salary, as due and admissible at an earliest, preferably within a period of three months from the date of receipt/production of copy of order. 8. With the aforesaid observations and directions, the writ petition stands allowed.