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2021 DIGILAW 894 (JHR)

Md. Mansoor Alam v. State of Jharkhand

2021-10-21

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order as contained in Memo No.942 dated 04.09.2010 issued by the respondent No.4; whereby the petitioner has retired with effect from 31.01.2010 on attaining the age of 62 years and was directed to hand over the charge to the senior most teacher of the Madarsa and provide the charge report to the said authority. The petitioner has further prayed for a direction upon the respondent authorities to allow him to continue in service with all consequential benefits till the age of 65 years in view of the fact that the petitioner is a teacher of Persian subject and as per clause-21 of the notification dated 19.12.1977 published in Bihar Gazette dated 12.04.1978 the retirement age of a Persian teacher is 65 years. 3. The brief facts of the case is that the petitioner has passed Fazil in Persian examination held in the year 1968 and he was appointed as Persian teacher in the year 1979 in Madarsa Hussainia Tajweedul Quran, Mahgama, Godda and since then he was teaching Persian in the said Madarsa. At the time of issuance of the impugned order he was Head Moulvi in which post he was duly promoted which was also approved by the Jharkhand Academic Council, Ranchi. All of a sudden, the impugned order has been issued whereby the petitioner was directed to retire from service with effect from 31.01.2010 after handing over the charge to the senior most teacher of the said Madarsa. 4. Mr. Afaque Ahmad, learned counsel for the petitioner submits that the action of the respondent authorities is bad in law, inasmuch as, the notification which they are relying whereby they are contending that the petitioner is entitled for service only till the age of 62 years is misconceived, inasmuch as, in the said Gazette notification itself at clause-21 it has been specifically indicated that normally the teacher of Persian subject would retire after attaining the age of 65 years. However, if the respondent so desire, due to bad health of any teacher, the said teacher can retire at the age of 62 years, but for that a show-cause notice has to be issued to the teacher before passing an order of retirement at the age of 62 years and in the instant case no notice was ever issued to this petitioner before issuance of impugned order, as such the very action adopted by the respondent authorities is non-est in the eye of law. 5. Mr. Bhaskar Trivedi, learned counsel for the respondent-State relying upon the same notification submits that at clause No.20 of the Gazette notification it has been categorically sated that after attaining the age of 62 years any teacher will automatically retire. He further relied upon paragraph Nos.9 and 20 of the supplementary counter affidavit dated 31.08.2021. For brevity, the same is quoted hereinbelow:- 9. That it is humbly stated and submitted that the age of retirement of the teachers of Madarsa and the Sanskrit Schools were fixed as 62 years and the same was communicated by the Secretary, Primary Education to all the District Education Officers within state of Jharkhand vide memo No.10/Vi 1-01/2019/908 dated 27.03.2019. 20. That it is humbly stated and submitted that with regard to paras 9 & 10 of the writ petition under reply, the answering respondent submits that the same is matter of record however the answering respondent stated and submits that there was no such direction passed by the answering respondent directing the petitioner to hold charge and continue working. It is also submitted that the committee without approval of the answering respondent as well as without concurrence of the JAC informed petitioner for which the answering respondent cannot be fastened with the liability. That it is submitted that the answering respondent upon receipt of the letter from Committee wrote a letter to the Secretary, Jharkhand Academic Council vide memo no. 277 dated 20.02.2013 as well as reminder letter contained in memo no.721 dated 02.08.2021 seeking guidance/direction from the Jharkhand Academic Council with regard to the letter of the Madarsa Committee as well as that of the Rules however no instruction was received by the answering respondent. 277 dated 20.02.2013 as well as reminder letter contained in memo no.721 dated 02.08.2021 seeking guidance/direction from the Jharkhand Academic Council with regard to the letter of the Madarsa Committee as well as that of the Rules however no instruction was received by the answering respondent. Relying upon the aforesaid paragraphs and clause-20 of the Gazette notification he strenuously contended that there is no perversity in the impugned order, inasmuch as, the petitioner has attained the age of 62 years and as such no relief can be granted to the petitioner. 6. Mrs. Richa Sanchita, learned counsel for the Jharkhand Academic Council supported the stand of the learned counsel for the respondent-State. 7. Having heard learned counsel for the parties and after going through the relevant documents annexed with the respective affidavits especially the notification dated 19.12.1977 published in Bihar Gazette dated 12.04.1978; it appears that the respondent No.5 has also filed an affidavit wherein it has been stated that in the light of the ordinance passed by the Bihar Government and letter No.4143/08 dated 23.05.2008 of the Jharkhand Academic Council, the Management Committee of Madarsa Hussainia Tajweedul Quran, Mahgama, Godda after organizing a meeting took a resolution on 10.01.2010 wherein it was decided that as per the Gazette notification the petitioner shall hold the post till the age of 65 years as he has been performing his duty satisfactorily in all respect. 8. It further transpires from record that the law of Madarsa education (Annexure-A to the counter affidavit) the terms and conditions of employees of Madarsa has been stipulated wherein at clause No.20 it has been stated that after attaining the age of 62 years all the teacher will superannuated from service. At the same time, at clause No.21 it has been stated that the person who is national awardee or a teacher in Persian will normally retire at the age of 65; however the respondent would be at liberty to terminate the service at the age of 62 years after due enquiry with respect to his health etc. At the same time, at clause No.21 it has been stated that the person who is national awardee or a teacher in Persian will normally retire at the age of 65; however the respondent would be at liberty to terminate the service at the age of 62 years after due enquiry with respect to his health etc. For brevity, clause No.20 and 21 are quoted hereinbelow:- ^^20-f'k{kd 62 o"kZ dh mez gks tkus ij Lor% lsok fuo`r gks tk;sxk ijUrq+] fcgkj enjlk ijh{kk ifj"kn~ Lo;a ;k lfpo] enjlk ijh{kk ifj"kn~ ds ek/;e ls lfefr }kjk ;k lh/ks lfpo@v/;{k }kjk funsZ'k fd;s tkus ij ;Fkksfpr tkWap djus vkSj laca} f'k{kd dh lquokbZ djus dk ;qfDr;qDr volj nsus ds ckn vkns'k ns ldsxk fd 60 o"kZ dh mez izkIr djus ds ckn f'k{kd dks fdlh Hkh le; vLoLFkrk ;k vn{krk ds vk/kkj ij ;k tc ifj"kn~ dh jk; esa mls lsok esa j[kuk fo/kky; ds fgr esa u gks rc lasok fuo`r djk;k tk; vkSj ifj"kn~ }kjk fn;k x;k ;g vkns'k vafre vkSj lfefr ds fy, vkc}dj gksxkA 21 + jk"V~h; iqjLdkj izkIr f'k{kd rFkk ijfl;u fo"k; iढ+kus okys fo}ku lk/kkj.kr% 65 o"kZ dh mez gksus ij lsok fuo`r gksxs] ijUrq ifj"kn~ Lo;a ;k lfpo@v/;{k] enjlk ijh{kk ifj"kn~ ds ek/;e ls lfefr }kjk ;k lh/ks lfpo@v/;{k }kjk funsZ'k fd;s tkus ij] ;Fkksfpr tkWap djus vkSj f'k{kd dh lquokbZ dk ;qfDr;qDr volj nsus ds ckn vkns'k ifjr dj ldsxk fd ,slk f'k{kd 62 o"kZ dh mez izkIr dj ysus ij fdlh Hkh le; vLoLFkrk ;k v/;{krk ds vk/kkj ij vFkok tc ifj"kn~ dh jk; esa mls lsok esa j[kuk fo/kky; ds fgr esa u gks rc lsokfuo`r gks tk; vkSj ifj"kn~ }kjk fn;k x;k ;g vkns'k vafre vkSj lfefr ds fyn vkc}dj gksxkA” 9. After going through the aforesaid two clauses, the only question which is to be adjudicated by this Court is as to which clause will apply in the case of this petitioner. Admittedly, the petitioner was Head Moulvi and was teaching Persian since inception. By conjoint reading of the two clauses referred to herein above it appears that though clause-20 stipulates that the teachers who were working in Bihar Madarsa would retire at the age of 62 years; however, a clarification has been given in clause-21 with regards to Persian teachers and the teachers who are national award winner. By conjoint reading of the two clauses referred to herein above it appears that though clause-20 stipulates that the teachers who were working in Bihar Madarsa would retire at the age of 62 years; however, a clarification has been given in clause-21 with regards to Persian teachers and the teachers who are national award winner. Clause-21 categorically stipulates that the teachers who is either national award winner or a teacher of Persian, would normally retire at the age of 65 years; however the Academic Council or the Secretary, Madarsa Board after due enquiry can terminate the service of any employee. 10. Now coming to the facts of this case; admittedly, no show cause notice was ever issued to the petitioner prior to issuance of the superannuation letter. It further transpires that the respondent Madarsa has taken a resolution on 10.01.2010 whereby it was resolved for continuation of service of this petitioner till the age of 65 years. Even otherwise, there is no contradiction in the Gazette notification which stipulates the terms and conditions of an employee of Madarsa Board and in clear expressions it has been mentioned that the teacher of Persian or a national awardee would retire at the age of 65 years unless a show cause notice has been given to him prior to issuance of superannuation at the age of 62 due to his health etc. Since in the instant case, no such notice has been given, as such this impugned order requires interference. 11. In view of the aforesaid findings it is held that the superannuation age of the petitioner is 65 years as he was a Persian teacher and he was entitled to work till he attained 65 years of age. Consequently, the impugned order as contained in Memo No.942 dated 04.09.2010 issued by the respondent No.4, is hereby, quashed and set aside. The petitioner is entitled for the entire consequential benefits till the date he attained 65 years. As such, the respondents are hereby directed to pay the entire monetary benefits to the petitioner till he attained the age of 65 years. It goes without saying that since the matter is very old; the entire consequential benefits be paid to the petitioner within a period of four months from the date of receipt/production of a copy of this order. 12. With the aforesaid terms, the instant writ application stands allowed and disposed of.