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2021 DIGILAW 583 (JHR)

Santosh Kumar Bisi v. State of Jharkhand

2021-08-04

S.N.PATHAK

body2021
ORDER : 1. Heard Mr. Anil Kumar, learned Sr. Counsel appearing on behalf of the petitioner and Mr. Devesh Krishna, learned SC (Mines-Ill). 2. Instant writ petition has been filed by the petitioner for a direction upon the respondents to consider his case for appointment to the post of Graduate Trained Teacher (Language) as also for quashing the order dated 23.01.2016, issued by the District Establishment Committee, whereby candidature of the petitioner to the post of Assistant Teacher (Language) has been cancelled on the ground that he is not eligible for the post. 3. Case of the petitioner in brief is that pursuant to the letter no. 1192, dated 02.06.2015, the Secretary to the Government, Department of Human Resources Development, issued a direction to all the Deputy Commissioners for direct recruitment to the post of Graduate Trained Teacher in all government Middle Schools in which it was mentioned that 50% of the total posts will be filled up as per the Rules of Jharkhand Primary School Teachers' Appointment Rules, 2013 and the remaining 50% of the posts by way of promotion. Thereafter, Advertisement No. 3/2015 was issued for appointment against the post of Graduate Trained Teachers. The respondent no. 2, vide letter no. 1530, dated 03.07.2015, made a communication to all the Deputy Commissioners of the districts that seven years' relaxation in age has to be given for appointment to the said post. Thereafter, Advertisement No. 4/2015 was issued for appointment to the post of Graduate Trained Teacher and last date for submission of forms RC through speed post/ registered post was fixed as 05.08.2015. Petitioner also submitted his application and qualified for the post of Language Teacher for the district of Lohardaga and a 5th provisional merit list of Lohardaga was published in which his name found place at serial no. 55. Thereafter, 6th and 7th merit list was also published. Case of the petitioner is that the persons whose name found place at serial nos. 57 and 61 in 5th merit list, were selected by the respondent authorities in the 7th counseling but the petitioner has not been selected in the 7th counseling though his name has been shown at serial no. 55 in the 5th merit list. Petitioner also represented before the Deputy Commissioner as well as the District Superintendent of Education, Lohardaga but no heed has been paid by them. 55 in the 5th merit list. Petitioner also represented before the Deputy Commissioner as well as the District Superintendent of Education, Lohardaga but no heed has been paid by them. Thereafter, the respondents in its meeting dated 23.01.2016 of the District Establishment Committee decided that claim of the petitioner to the post of Assistant Teacher (Language) is not made out and, according, his application has been rejected. Respondents have taken a view that since the petitioner has passed B.A. (Hons.) in History, his claim for appointment to the post of language teacher is not maintainable. 4. It is case of the petitioner that the Secretary, Department of Human Resource Department (Primary Education Directorate), vide its letter no. 1192, dated 02.06.2015, directed all Deputy Commissioners for appointment of Assistant Teachers, wherein at paragraph-6 eligibility regarding educational qualification has been mentioned. It has been provided that the candidates who have passed the Graduation examination with language as a subject and fulfill other conditions as stipulated in the Jharkhand Primary School Teacher Appointment Rule, 2012 (as amended) shall be eligible for appointment to the post of Assistant Teacher (Language). Same and similar condition has been mentioned in para 5(Ga) of the advertisement. In the 2012 Rules also, the educational qualification for appointment is only graduate and there is no specific condition that the candidate must be graduate with Honours in the language paper. It is specific case of the petitioner that the respondents cannot add the eligibility criteria which has not been provided in the advertisement or in the Rule of 2012 and such addition of qualification is illegal and without jurisdiction and as such, the writ petition is fit to be allowed. It has been contended that the petitioner could not be denied appointment to the post of Assistant Teacher (Language) on the ground that he does not possess the qualification of Graduation in concerned language as no such qualification was prescribed by the NCTE in its Notification dated 29.07.2011 or in the 2012 Rules and a qualification which was not prescribed in the Rules or the advertisement, could not have been prescribed by issuing an executive order by the State. Petitioner had language as a compulsory subject in Graduation level and it fulfills the required criteria. 5. It appears that the case was listed on 30.08.2018 and a direction was passed to put up the same after outcome of L.RA. Petitioner had language as a compulsory subject in Graduation level and it fulfills the required criteria. 5. It appears that the case was listed on 30.08.2018 and a direction was passed to put up the same after outcome of L.RA. No. 219 of 2017. 6. Today when the case is called out, Mr. Anil Kumar, learned Sr. Counsel appearing for the petitioner submits that the L.RA. No. 219 of 2017 has already been dismissed on 27.06.2019 and as such the issue is set at rest. 7. Mr. Devesh Krishna, learned SC (Mines-Ill) does not dispute the same. Learned counsel further submits that for appointment to the post of Assistant Teachers in language, the minimum qualification prescribed is to have graduation in the concerned language and the candidates having graduation with other subjects, cannot be appointed as Assistant Teacher in Language in spite of the fact they are having Modern Indian Language (MIL) as one of the compulsory subjects. Irrespective of his main subject in the graduation level, a student is required to have a compulsory subject of MIL, which only gives the working knowledge to the student in the language but it does not give the in-depth knowledge of the said language. 8. From the office note dated 23.06.2021 also it appears that the L.RA. No. 219 of 2017 and other analogous cases have already been dismissed and a copy thereof has been placed on record. From perusal of the said Judgment, it appears that the appellants in the said Letters Patent Appeal had moved before the Hon'ble Division Bench against the Judgment dated 18.03.2017, passed in W.P.(S) No. 4631 of 2015 and other analogous cases whereby the writ petitions had been dismissed. 9. From going through the averments made in the affidavits filed by the parties as also going through the Judgment passed in L.RA. No. 219 of 2017 and other analogous cases, I find that the matter has already been set at rest. 9. From going through the averments made in the affidavits filed by the parties as also going through the Judgment passed in L.RA. No. 219 of 2017 and other analogous cases, I find that the matter has already been set at rest. The qualifications prescribed by the NCTE or the 2012 Rules were the minimum qualifications for appointment as a Teacher for Class-IV to VIII, which did not specify subject - specific educational qualifications for appointment of teachers in different subjects and the State Government was well within its jurisdiction under rule 28 of the 2012 Rules to issue the clarifications and as the 2012 Rules did not provide any specific qualification for appointment to the post of Graduate Trained Teacher, that difficulty was removed by issuing notification dated 31.07.2014 and by providing subject-specific qualifications for appointment of teachers in Mathematics and Science, Social Science and Languages. The Notification dated 31.07.2014 did not deviate from the qualifications fixed by the 2012 Rules or the minimum qualification prescribed by the NCTE. Where the Rules did not prescribe any particular qualification, the said qualification could be prescribed by the appointing authority. Similar has been view taken in the case of K.H. Siraj Vs. High Court of Kerala and others reported in (2006) 6 SCC 395 and in the case of Sant Ram Sharma Vs. State of Rajasthan reported in 1968 (1) SCR 111 . The language teacher is a distinct class of teacher, different from a Science or a Social Science teacher and for appointment to the post of language teacher, qualification in Graduation with MIL or any other language as a compulsory subject is not a sufficient qualification. The RTE Act, 2009 (read as RCFCE Act) and Rule 9 of the Appointment Rules, 2012 when examined in the context of the object for which three distinct category of teachers viz. Mathematics/ Science, Social Sciences and Languages must be appointed in Upper Primary Schools, it becomes clear that the educational qualifications for appointment to the post of Mathematics/ Science or Social Science teacher are not sufficient for appointment as a language teacher. A candidate having MIL as a compulsory subject in graduation level, cannot be appointed as a teacher in languages. Mathematics/ Science, Social Sciences and Languages must be appointed in Upper Primary Schools, it becomes clear that the educational qualifications for appointment to the post of Mathematics/ Science or Social Science teacher are not sufficient for appointment as a language teacher. A candidate having MIL as a compulsory subject in graduation level, cannot be appointed as a teacher in languages. It is not denied that even the students doing graduation in a particular language i.e. in Hindi or in English, is also required to take MIL as one compulsory subject in the graduation level, apart from several papers in the concerned language. Curriculum for Hindi or English in graduation level shall have a different course contents compared to MIL as a compulsory paper. If a teacher is appointed in the subject of languages, only having MIL as a compulsory paper, the children would be deprived of quality education in the concerned language inasmuch as MIL as a compulsory subject is included in the course of graduation in all subjects only to ensure that the students are going to have a minimum level of working language and proficiency in that language, but once a teacher is to be appointed for a particular subject, as for example, if he is to be appointed as a Science teacher, he must have the graduation in science. If he is being appointed as a teacher in Social Science, he must be a Graduate in Social Science, and if he is appointed as a Language Teacher, he must be a Graduate exclusively in that language. Any deviation shall result in deprivation of the children of proper education in language and shall frustrate the very aim and object of RCFCE Act, enacted by the Parliament of India. The educational qualification being subject centric. An interpretation which reduces statute to futility has to be avoided even though there may be some inexactitude in the language used. 10. In view of the facts and circumstances discussed hereinabove, this writ petition stands dismissed.