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2023 DIGILAW 929 (JHR)

State of Jharkhand v. Neha Khan W/o Rashid Khan

2023-07-25

NAVNEET KUMAR, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : Sujit Narayan Prasad, J. 1. It appears from the order dated 09.12.2019 that the instant appeal along with L.P.A. No. 178 of 2018 and L.P.A. No. 365 of 2018 have been directed to be heard together. 2. This Court, on perusal of the impugned order has found that the issue involved in the instant case is regarding the eligibility of the respondent while in L.P.A. No. 178 of 2018 and L.P.A. No. 365 of 2018, the issue involved in regarding the applicability of the reservation policy in the minority institution. 3. Therefore, this Court is of the view that the prayer/relief sought for in L.P.A. No. 178 of 2018 and L.P.A. No. 365 of 2018 are similar and hence, the instant appeal is to be separated from the aforesaid two appeals, i.e. L.P.A. No. 178 of 2018 and L.P.A. No. 365 of 2018. 4. Accordingly, the instant appeal is separated from L.P.A. No. 178 of 2018 and L.P.A. No. 365 of 2018 and is being heard separately. I.A. No. 4313 of 2018: 5. This interlocutory application has been filed for condoning the delay of 46 days, which has occurred in preferring this appeal. 6. Mr. Mithilesh Singh, learned GA-IV appearing for the State of Jharkhand has submitted that the delay of 46 days in preferring the instant appeal may be condoned. 7. Mrs. M.M. Pal, learned senior counsel appearing for the respondent-writ petitioner has not objected to such prayer of the learned counsel for the appellants rather she has submitted that the delay be condoned so that the issue be decided on merit. 8. This Court, considering the reason assigned therein and having no opposition on behalf of the respondent-writ petitioner, is of the view that the delay of 46 days in preferring the instant appeal is required to be condoned. 9. Accordingly, this interlocutory application is allowed and the delay of 46 days in preferring this appeal, is hereby condoned. L.P.A. No. 248 of 2018: 10. 9. Accordingly, this interlocutory application is allowed and the delay of 46 days in preferring this appeal, is hereby condoned. L.P.A. No. 248 of 2018: 10. The instant appeal under clause 10 of the Letters Patent is directed against the order/judgment dated 22.02.2018 passed in W.P. (S) No. 2156 of 2016, whereby and whereunder, the writ petition has been allowed by quashing the order dated 12.12.2014 and the respondents have been directed to release all the consequential benefits to the petitioner within a period of eight weeks from the date of receipt/production of a copy of the order. 11. The facts of the case which requires to be enumerated herein, read as under: Pursuant to an advertisement published in local daily on 03.05.2011 inviting application for appointment to the post of Assistant Teacher against the sanctioned and vacant post, petitioner being M.A., B.Ed. from Guru Ghasi Das University, Bilaspur, Chhatisgarh applied for her appointment. After scrutiny of forms and interview, petitioner was declared successful and was offered letter of appointment for the appointment as an Assistant Teacher in the said Minority School vide Memo No. 13/11, dated 19.06.2011 Thereafter, she gave her joining on 22.06.2011 in the initial pay scale of Rs.9,300-34,800 and since then she is working and discharging her duty to the satisfaction of the superiors. The appointment of the petitioner has been made in pursuance of the recommendation of the Regional Education Officer, Chakradharpur and School Managing Committee, Urdu Town Middle School, Chakradharpur vide their proceeding dated 16.06.2011 and the said fact was duly intimated to the District Superintendent of Education, West Singhbhum at Chaibasa by the Secretary of the said School. Said appointment has been duly approved by the District Superintendent of Education, West Singhbhum, Chaibasa vide his memo no. 907, dated 07.05.2012. Petitioner, thereafter, approached before the Directorate of Human Resource Development for fixation of her salary. However, it was informed to her that due to non-approval by the Directorate, no order of fixation of pay scale of the petitioner has been passed and, therefore, petitioner is not receiving her salary even after her appointment against the vacant and sanctioned post. A query was made by the District Superintendent of Education, Chaibasa vide Memo No. 2812, dated 29.11.2012 from the Secretary, Urdu Town Middle School, Chakradharpur to clarify with regard to possession of TET Certificate of the petitioner. A query was made by the District Superintendent of Education, Chaibasa vide Memo No. 2812, dated 29.11.2012 from the Secretary, Urdu Town Middle School, Chakradharpur to clarify with regard to possession of TET Certificate of the petitioner. Pursuant to the said queries, the Secretary of the Managing Committee sent a letter dated 03.12.2012 clarifying that the Teachers Appointment Rules contained in Notification No. 1632, has been issued only on 05.09.2012 and the said Rule is applicable prospectively and since petitioner has been appointed on 19.06.2011, ie much prior to the Rule being into force, the requirements with regard to passing of TET in light of Notification dated 05.09.2012, can only be made effective on and from 05.09.2012 and it has no retrospective effect. It is further averred that for the first time requisite qualification of passing TET has been prescribed by the National Council of Teachers' Education vide Notification dated 23.08.2010 and the method and guidelines for conducting the TET Examination was duly prescribed vide letter dated 11.02.2011 and prior to that, there was no requirement of passing TET Examination. The minimum qualification of passing TET has been implemented by the State of Jharkhand by formulating Rules notified vide Notification No. 1632, Dated 05.09.2012 wherein for the first time guidelines have been issued for holding examination of Teachers' Eligibility Test and further required conditions have been incorporated. 12. It is evident from the fact as referred hereinabove that in pursuance of the advertisement dated 03.05.2011, the writ petitioner was appointed to the post of Assistant Teacher claimed to be against the sanctioned and vacant post since the writ petitioner was M.A., B.Ed. during the relevant time and accordingly, after taking into consideration her candidature, she was offered with the letter of appointment to be appointed as an Assistant Teacher in the said minority school vide memo no. 13/11 dated 19.06.2011. The writ petitioner had given her joining on 22.06.2011 in the initial pay scale of Rs.9,300-34,800. She continued to discharge her duties. The initiative was taken by the Manning Committee of the said school by drawing a proceeding on 16.06.2011 for approval of the services of the writ petitioner. The aforesaid decision as contained in the minutes dated 16.06.2011 was communicated to the District Superintendent of Education, West Singhbhum, Chaibasa. She continued to discharge her duties. The initiative was taken by the Manning Committee of the said school by drawing a proceeding on 16.06.2011 for approval of the services of the writ petitioner. The aforesaid decision as contained in the minutes dated 16.06.2011 was communicated to the District Superintendent of Education, West Singhbhum, Chaibasa. The writ petitioner claimed that her services was approved by the District Superintendent of Education which was issued vide memo no. 907 dated 07.05.2012. The writ petitioner, thereafter, approached before the Directorate of Human Resource Development for fixation of her salary but it was informed that due to non-approval of her services by the Directorate, there is no question of fixation of pay scale, as such, the writ petitioner has not paid the salary. The writ petitioner, on enquiry, came to know that the writ petitioner was not having the required eligibility criteria of having passed TET examination which was necessary in the light of the notification dated 23.08.2010 prescribed by National Council of Teacher Education. The writ petitioner, being aggrieved with the said decision, has approached to this Court by filing writ petition being W.P. (S) No. 2156 of 2016 by taking the ground that even though the National Council of Teacher Education (NCTE) had come out with a notification on 23.08.2010 but the same will have no effect upon the State of Jharkhand since possessing the requisite eligibility criteria to have passed the TET examination for the first time has brought into being under the proviso to Article 309 of the Constitution of India in the light of the notification dated 05.09.2012, as such, the said requirement will only be applicable with prospective effect. The writ petitioner since has been appointed in terms of the advertisement dated 03.05.2011, therefore, the eligibility criteria to have the TET Examination passed, cannot be said to be a requirement on the day when the writ petitioner was considered for appointment and was appointed. The contention was also raised that merely because the NCTE has come out with the notification on 23.08.2010, that does not mean that the same will have its effect upon the State of Jharkhand unless the same was adopted but no order to that effect or adoption was brought to the notice of the learned writ Court. The contention was also raised that merely because the NCTE has come out with the notification on 23.08.2010, that does not mean that the same will have its effect upon the State of Jharkhand unless the same was adopted but no order to that effect or adoption was brought to the notice of the learned writ Court. The learned Single Judge has considered the aforesaid legal issues and putting reliance upon the order passed in W.P. (S) No. 6345 of 2016, has quashed the impugned order dated 12.12.2014 against which the instant appeal has been filed. 13. Learned counsel for the appellants has submitted that the impugned order suffers from infirmity since the said order is not applicable in the facts and circumstances of the instant case as the fact in the W.P. (S) No. 6345 of 2016 pertains to the applicability of the reservation policy in the minority schools but the learned Single Judge without taking into consideration the aforesaid fact has interfered with the impugned order, therefore, the impugned order requires interference. 14. This Court, on appreciation of the factual aspect and argument advanced on behalf of the learned counsel for the parties, has gathered therefrom that the issue involved in this case is non-possessing of the eligibility criteria of TET examination. 15. The State has taken the decision by not appreciating the services of the writ petitioner since the writ petitioner has not passed the TET examination as required by virtue of notification dated 23.08.2010 issued by the NCTE while on the other hand, the writ petitioner has taken the ground that the notification issued by the NCTE dated 23.08.2010 will not be applicable ipso facto unless adopted or rules in this regard is made. The rule was made under the proviso to Article 309 of the Constitution of India only on 05.09.2012 and therefore, the requirement to have the TET examination passed is only required to the appointment post 05.09.2012 but herein, the appointment since was made prior to 05.09.2012, hence, there is no requirement to have passed TET examination. 16. The rule was made under the proviso to Article 309 of the Constitution of India only on 05.09.2012 and therefore, the requirement to have the TET examination passed is only required to the appointment post 05.09.2012 but herein, the appointment since was made prior to 05.09.2012, hence, there is no requirement to have passed TET examination. 16. The issue therefore, is as to whether the requirement of TET examination to have passed by the writ petitioner in pursuance of the notification dated 23.08.2010 issued by the NCTE or it requires to have on the basis of the notification dated 05.09.2012, the rule enshrined under the proviso to Article 309 of the Constitution of India. 17. The law is well settled that any notification cannot have its retrospective application. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in P. Mahendran vs. State of Karnataka, (1990) 1 SCC 411 wherein at paragraph-5, it has been observed which reads as: “It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure.” 18. Although the reference of the aforesaid judgment has been made herein, but from the facts it is clear that herein it will be said to be admitted case of the State that the requirement to have to the TET examination passed has been made as required under the eligibility criteria under the proviso to Article 309 of the Constitution of India which was notified on 05.09.2012. The aforesaid rule is on paperbook and the Court has considered the same wherefrom it is evident that the rules have been enshrined under the proviso to Article 309 of the Constitution of India. 19. It is evident from the rule 1(ga) that the said rule has been decided to be made applicable from the date of issuance of notification. The aforesaid rule is on paperbook and the Court has considered the same wherefrom it is evident that the rules have been enshrined under the proviso to Article 309 of the Constitution of India. 19. It is evident from the rule 1(ga) that the said rule has been decided to be made applicable from the date of issuance of notification. The notification is dated 05.09.2012 and hence, there is no reason not to accept the argument advanced on behalf of the learned senior counsel appearing for the respondent-writ petitioner that the requirement to have TET examination passed will only be effective on or after 05.09.2012. 20. The ground which has been taken on behalf of the State that the NCTE since has come out with the notification on 23.08.2010, hence, the TET examination was required to be passed. But, this Court is not in agreement with the said submission/ground since the NCTE although might have came out with the notification on 23.08.2010 but the same cannot be said to be ipso facto applicable in the State of Jharkhand unless adopted or a rule to that effect is made. 21. Admittedly herein, the rule has been framed under the proviso to Article 309 of the Constitution of India on 05.09.2012, hence, there is no question of applicability of the guideline of the NCTE merely on the basis of the notification dated 23.08.2010. 22. The other reason in not accepting the argument of the learned State counsel is that since ‘Education’ comes under the Concurrent List and once the rule has been framed under the proviso to Article 309 of the Constitution of India by the State of Jharkhand then the same is binding upon all the concerned. 23. This Court, after having discussed the aforesaid legal issues and after coming back to the order passed by the learned Single Judge wherein the writ petition was decided on the basis of the order passed in W.P. (S) No. 6345 of 2016. 24. This Court has perused the order passed by the learned Single Judge in W.P. (S) No. 6345 of 2016 in order to answer the argument that the order impugned ought not to have been interfered with basis upon the order passed in W.P. (S) No. 6345 of 2016 since the factual aspect of the said writ petition is altogether different. 25. 25. This Court after going through the order dated 05.09.2017 passed in W.P. (S) No. 6345 of 2016 is in agreement with the submission made on behalf of the State reason being that the subject matter of the writ petition being W.P. (S) No. 6345 of 2016 was applicability of the reservation policy. 26. Further, it appears from the impugned order at paragraph-7 that the writ petition was disposed of with the consent of the counsel for the State wherein the submission was made for disposal of the writ petition in the light of the order passed in W.P. (S) No. 6345 of 2016. But, the question arises that even accepting that the learned Single Judge has not considered the factual aspect/applicability of the order passed in W.P. (S) No. 6345 of 2016, can on this ground the matter may be remanded as the prayer of the State is. 27. This Court is of the view that if any error has been committed in not placing the case before the Court of Law by a party, the said party cannot be allowed to take advantage of the same. Remanding the matter before the authority, according to our considered view, will again put the writ petitioner on rigour of pendency of the proceeding. 28. The law is well settled that the illegal doer cannot have a chance to make a prayer for remand to rectify the said illegality as so to allow such party to take advantage of this wrong. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Kusheshwar Prasad Singh vs. State of Bihar and Others, (2007) 11 SCC 447 , wherein at para-14, it has been laid down by making reference of the judgment rendered by the Hon’ble Apex Court in Mrutunjay Pani vs. Narmada Bala Sasmal, AIR 1961 SC 1353 , wherein an obligation is cast on a party and if he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong). This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong). The said proposition has also been discussed in detail by the Hon’ble Apex Court in the judgment rendered in Indore Development Authority vs. Shailendra and Others, (2018) 2 SCC 412 as would be evident from para-143 and 167 by quoting the judgment rendered in the case of Mrutunjay Pani vs. Narmada Bala Sasmal (supra), that no litigant can deprive the benefit of his own wrong. The doctrine commodum ex injuria sua nemo habere debet means convenience cannot accrue to a party from his own wrong. 29. This Court, on the basis of the aforesaid principle, is of the view that when the issue depends upon the interpretation of the legal issue as has been dealt with hereinabove about the application of the notification dated 23.08.2010 issued by the NCTE, question is that why to remand the matter, granting liberty to file review by approaching the learned Single Judge. 30. Since the issue has already been decided regarding the applicability of the notification dated 23.08.2010, therefore, the prayer so made for remand, according to our considered view, appears to be unjustified. 31. Further, the instant appeal is itself not maintainable since the order speaks that it is consensual as would appear from paragraph-6 of the impugned order, however, therein reference of one W.P. (S) No. 5521 of 2017 has been made and on query made to the learned counsel for the State about the nature of order passed in W.P. (S) No. 5521 of 2017, it has been submitted that the said writ petition is on the issue of reservation. 32. Be that as it may, fact remains that the writ petition was disposed of with consent of the learned State counsel, therefore, this Court is of the view that on that ground, the State ought not to have preferred the appeal but even then, the appeal has been preferred. 33. The filing of the instant appeal, according to our considered view, is nothing but putting the litigant in harassment as also it is sheer misuse of the judicial proceeding. 34. This Court, in the entirety of the facts and circumstances, is of the view that the instant appeal deserves to be dismissed. 35. Accordingly, the instant appeal fails and stands dismissed. 36. 34. This Court, in the entirety of the facts and circumstances, is of the view that the instant appeal deserves to be dismissed. 35. Accordingly, the instant appeal fails and stands dismissed. 36. Pending interlocutory application(s), if any, also stands disposed of.