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2024 DIGILAW 691 (JHR)

Rita Kumari v. State of Jharkhand

2024-07-12

S.N.PATHAK

body2024
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for a direction upon the respondents to consider his case for appointment to the post of Inter Trained Teacher (Assistant Teacher, Class-I to V) under Para Category for the districts of Chatra, Subject Khortha, pursuant to advertisement no. 07/2015 (amended) since she has obtained higher marks than the last selected candidate. It is case of the petitioner that she has obtained total 53.59 marks, however the cut off marks was 52.41 only in MBC, female category. 3. According to petitioner, she had completed her Intermediate course after taking due permission from the superior authorities i.e. Block Education Extension Officer, which is evident from the Letter dated 20.03.2005 as contained in Annexure- R/1 of the rejoinder. The petitioner had never absented from her work as Para Teacher and she has worked diligently without any complaint from any corner as Para Teacher, which is evident from certificate dated 18.06.2018 (Annexure-3). It is case of the petitioner that in spite of having more marks than the last selected candidate, she was not called for counselling as she was told that she has completed her Intermediate Degree not through distance learning, hence her candidature cannot be considered. 4. Mr. Amritansh Vats, learned counsel appearing on behalf of the petitioner strenuously urges that non-consideration of case of the petitioner for appointment to the post of Inter Trained Teacher (Assistant Teacher, Class-I to V) under Para Category is not tenable in the eyes of law on the ground that petitioner has qualified and has obtained higher marks than the last selected candidate but her candidature was not considered as she has completed her course as a regular student. Leaned counsel further argues that there is no such appointment rule as well as any terms and conditions mentioned in the Advertisement, which states that the petitioner cannot enhance her education qualification while working as Para Teacher nor there is such rule or bar in the advertisement which suggests that if a candidate has enhanced her educational qualification as Para Teacher, her candidature will be rejected. The petitioner has neither committed any such illegality nor has violated the terms of the advertisement rather non-consideration of her case by the respondents is itself bad in the eyes of law. The petitioner has neither committed any such illegality nor has violated the terms of the advertisement rather non-consideration of her case by the respondents is itself bad in the eyes of law. Learned counsel further submits that there is no such allegations upon the petitioner of absenteeism from her work rather she has worked diligently and to the satisfaction of the authorities, which is evident from letter dated 18.06.2015. Learned counsel further argues that only after grant of due permission from the Block Education Extension Officer, she has enhanced her educational qualification which will definitely in the interest of the students as well. 5. Mr. Amritansh Vats, learned counsel appearing on behalf of the petitioner argues that similar issues fell for consideration before the Hon’ble Division Bench as well as before the Hon’ble Writ Court whereby and where under the Hon’ble Court directed to consider the candidature of the concerned and as such in light thereof, case of the petitioner is fit to be considered. Supporting his arguments, learned counsel submits that in view of the Judgment pronounced by the Hon’ble Writ Court in the case of Paras Nath Mandal vs. State of Jharkhand, W.P. (S) No. 2378/2019 which was affirmed by the Hon’ble Division Bench, the State of Jharkhand is going to conduct counselling on 01.08.2024 for the several vacant seats and as such, there is no doubt that several seats are still vacant pursuant to the aforesaid advertisement. 6. Mr. Sudhanshu Kumar Singh, AC to learned SC-III representing State, brushing aside the arguments advanced by learned counsel for the petitioner, emphatically argues that since petitioner has obtained the said Degree as a regular student while working as Para Teacher, it amounts to misconduct and as such, rightly her candidature was not considered even if she had obtained higher marks than the last selected candidate. Learned counsel places heavy reliance upon the Judgment dated 18.08.2021, rendered by the Hon’ble Division Bench in L.P.A. No. 271 of 2018. 7. Having gone through rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons: (i) Admittedly, petitioner had obtained much more marks than the last selected candidate. She was found fit for appointment after selection pursuant to the advertisement issued by the State. 7. Having gone through rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons: (i) Admittedly, petitioner had obtained much more marks than the last selected candidate. She was found fit for appointment after selection pursuant to the advertisement issued by the State. There is no any allegation that her certificate is not genuine and she is otherwise unfit for appointment. The grounds for rejection of claim of the petitioner is not at all tenable in view of Annexure-R/1 of the rejoinder and the certificate issued vide order dated 20.03.2005 granting permission. (ii) Petitioner was granted permission by the Block Education Extension Officer to enhance her educational qualification and only thereafter she has enhanced her educational qualification and as such there is no illegality or any infirmity. (iii) Before rejecting claim of the petitioner for appointment, she was not afforded any opportunity of hearing so as to justify herself as to under what circumstances she had obtained Degree. If any opportunity could have been given to her, she would have brought the reasoning as well as the permission granted to her by the Block Education Extension Officer. In absence of both, the non-consideration of her case is not justified and needs to be interfered. 8. In the Judgment dated 16.09.2019, passed in L.P.A. No. 385 of 2019, the findings of the Hon’ble Division Bench are contained in Para No. 6 and 7, which is quoted as under: “6. The only point that the learned counsel for the State has taken for challenging the impugned order, is that the respondent could not have enhanced her educational qualification as a regular student, while working as Para Teacher. This submission of the learned counsel is adequately answered in the impugned order itself, when it is found that she had been given permission by the Block Education Extension Officer, to enhance her educational qualification and only thereafter she had enhanced her educational qualification. As such, we do not find any illegality in the impugned order passed by the Hon'ble Single Judge, quashing the termination order of the respondent herein, on the ground that she had not committed any misconduct so that her service could be terminated, and directing her reinstatement in service, worth any interference in exercise of Letters Patent Appellate jurisdiction. 7. As such, we do not find any illegality in the impugned order passed by the Hon'ble Single Judge, quashing the termination order of the respondent herein, on the ground that she had not committed any misconduct so that her service could be terminated, and directing her reinstatement in service, worth any interference in exercise of Letters Patent Appellate jurisdiction. 7. Since we do not find any illegality in the impugned order, no useful purpose is going to be served by condoning the delay of 76 days in filing this appeal. As such, I.A. No. 6628 of 2019 stands dismissed. For the same reason, the other I.A. No. 5041 of 2019, filed for staying of the operation of the impugned order, also stands dismissed.” 9. In the Judgment dated 09.05.2018, passed in W.P. (S) No. 3147 OF 2017 by this Court, it has been held in Para No. 5 to 10, which reads as under: “5. In view of the counselling, the petitioner was waiting to get a letter of appointment but surprisingly he received letter dated 26.02.2016, issued by the District Superintendent of Education, Ramgarh whereby an explanation was sought for to explain under whose permission, the petitioner has completed Intermediate course on regular basis while working as a para teacher. In compliance of the said letter, petitioner gave explanation and clearly mentioned that he had passed Intermediate exams in the sessions of 2003-05 and had also attended the morning classes with due permission from Village Education Committee of the School. It is also the case of the petitioner that regarding the augmentation of the educational qualification of the petitioner, a verification/ inspection was also made by Block Education Extension Officer, Gomia, Bokaro and the said Authority through his letter dated 02.09.2016 had submitted a report to the District Superintendent of Education, Giridih, mentioning therein that petitioner had obtained the qualification of Intermediate by attending the morning classes in the session 2003-05 with due permission of Village Education Committee. The appointment of the petitioner was made in Upgraded Middle School, Tisri by the Aam Sabha in the proceeding dated 25.09.2003 of the Village Education Committee and the petitioner is imparting education since then on regular basis. The appointment of the petitioner was made in Upgraded Middle School, Tisri by the Aam Sabha in the proceeding dated 25.09.2003 of the Village Education Committee and the petitioner is imparting education since then on regular basis. Though the petitioner filled all the requisite qualifications and was appointed by the Village Education Committee, the respondents arbitrarily issued letter dated 31.12.2016, cancelling the candidature of the petitioner for his appointment as Inter Trained Teacher (para category) under Ramgarh district on the ground that petitioner has passed Intermediate course on regular basis while working as para teacher. Thereafter, petitioner represented before the respondent-authorities annexing the enquiry report and all the relevant documents regarding his eligibility criteria, but the same were not considered and hence, the petitioner has knocked the door of this Hon'ble Court. 6. Mr. Afaque Ahmed, learned counsel appearing for the petitioner strenuously urges that cancellation of the candidature of the petitioner is arbitrary and dehors the rules. Petitioner fulfils all the eligibility criteria required for appointment as Inter Trained Teacher Even the report of the enquiry conducted by the respondent's official suggests that there was no any illegality in obtaining Intermediate pass certificate and the petitioner had obtained the intermediate certificate in morning sessions and as such, it cannot be said that petitioner has passed the Intermediate course on regular basis while working as para teacher. Even if the petitioner has pursued his Intermediate course while working as para teacher but it has never hampered the work assigned to the petitioner as para teacher. No loss was caused to the Institution as petitioner never absented himself from teaching work, which finds support from Annexure 12/A duly issued by the Principal, Tenughat Inter Mahavidyalaya, Tenughat, Bokaro and as such, the cancellation of candidature of the petitioner is not at all tenable in the eyes of law. 7. Per contra, counter-affidavit has been filed by the respondents. Mr. 7. Per contra, counter-affidavit has been filed by the respondents. Mr. A.K. Sinha, learned counsel appearing for the respondents vehemently opposes the contention of the learned counsel for the petitioner and by drawing the attention of the Court towards para-13 of the counter-affidavit submits that petitioner was enrolled in the Tenughat Intermediate College for the session 2003-05, prior to his joining as para teacher i.e. 01.10.2003 as a regular student, whereas, petitioner has obtained the 'No Objection Certificate for enrolment in the intermediate examination by the Secretary and Chairman of the Village Education Committee on 25.03.2004, which clearly shows that the statement made by the petitioner is incorrect. 8. Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered view that the case of the petitioner needs consideration. The submissions made by the learned counsel for the respondents is not acceptable by this Court in view of enquiry report submitted by the respondents' officials and he after enquiring the matter, found the allegations levelled against the petitioner as baseless. I find that rejection of the candidature of the petitioner vide letter dated 31.12.2016 is not tenable in the eyes of law and hence, fit to be quashed and set aside. 9. Accordingly, letter dated 31.12.2016 is hereby quashed and set aside and the respondents are directed to accept the appointment of the petitioner in the Ramgarh district as Inter Trained Teacher (para category) within a period of four weeks from the date of receipt/ production of a copy of this order. 10. Resultantly, the writ petition stands allowed.” 10. In the Judgment dated 28.08.2018, passed in W.P. (S) No. 6875 of 2016 by this Court, it has been held in Para No. 6 to 9, which reads as under: “6. Assuming the allegation against the petitioner, that while working as para-teacher she has attended the B.Ed. Course, is true, all that the respondent-employer could have done was to take disciplinary action against the employee, but on this ground the B.Ed. degree granted by Pt. Ravishankar Shukla University cannot be held not valid. Moreover, the enquiry on verification of the educational qualification cannot be permitted to go to such an extent to declare the B.Ed. degree invalid on the ground of misconduct committed by the employee in course of the previous employment. degree granted by Pt. Ravishankar Shukla University cannot be held not valid. Moreover, the enquiry on verification of the educational qualification cannot be permitted to go to such an extent to declare the B.Ed. degree invalid on the ground of misconduct committed by the employee in course of the previous employment. May be appointment of the petitioner is provisional and before the period of probation expired she has been issued a show-cause notice, there is no allegation that she has submitted a forged certificate or that the educational qualification acquired by her is not valid. It is also not a case pleaded by the respondents that she has not rendered satisfactory service or that she has been convicted in a criminal case. Evidently, none of the conditions which may warrant termination from service during the period of probation is satisfied in the case of the petitioner, the conditions for termination are mentioned in the appointment letter. 7. The aforesaid facts clearly demonstrate that the procedure adopted by the respondents for scrutinizing the educational qualification of the petitioner was erroneous which has vitiated the decision making process resulting in her termination from service. 8. In view of the aforesaid facts and the reasons indicated hereinabove, the impugned order dated 04.10.2016 is quashed. The petitioner may tender her joining before the District Superintendent of Education, Simdega, within 2 weeks. She shall be granted benefits of continuity in service and paid salary for the period she has actually worked as Graduate-Trained Teacher. 9. The writ petition stands allowed, in the aforesaid facts.” 11. Further, vide order dated 25.08.2018, passed in W.P. (S) No. 7142 of 2016 by this Court, it has been held in Para No. 10 to 15, as under: “10. Assuming that the petitioner has been appointed on the basis of his qualification of Graduation, in my opinion, on the allegation that he has obtained the degree of B.A. (Hons.) in History as a regular candidate while working as Para-Teacher, he cannot be terminated from service. He has been awarded degree in Graduation by Ranchi University, he appeared in the examination and has been declared successful. He has been awarded degree in Graduation by Ranchi University, he appeared in the examination and has been declared successful. The allegation that while working as Para-Teacher he has appeared in B.A. (Hons.) Part-II and Part-III examinations as regular candidate, at best, could have been a ground to initiate a departmental proceeding against him and, at the worst, he could have been terminated from service as Para-Teacher. But, on such an allegation his appointment as Intermediate-trained Teacher which is a fresh appointment pursuant to Advertisement No. 4 of 2015 cannot be cancelled. The impugned order dated 04.10.2016 does not indicate that the petitioner is not otherwise eligible for appointment as Intermediate-trained Teacher. 11. Another aspect of the matter which needs to be indicated is that in the garb of verification of qualification of the selected candidates the respondent-authority cannot embark upon a roving enquiry to find some fault with the qualifications of a selected candidate. If a procedure such as the one adopted by the respondent-authority is permitted in law it would bring uncertainty in the system and, thus, would not be in the public interest. 12. May be appointment of the petitioner is provisional and before the period of probation expired he has been issued a show-cause notice, there is no allegation that he has submitted a forged certificate or that the educational qualification acquired by him is not valid. It is also not the case pleaded by the respondents that he has not rendered satisfactory service or that he has been convicted in a criminal case. Evidently, none of the conditions which may warrant termination from service during the period of probation is satisfied in the case of the petitioner, the conditions for termination are mentioned in the appointment letter. 13. In view of the facts noticed hereinabove, I find that the procedure adopted by the respondent-authority which has concluded with order of termination of the petitioner from service must be held erroneous and resultantly the impugned order dated 04.10.2016 has been rendered unsustainable in law. 14. In the aforesaid facts and for the reasons indicated hereinabove the impugned order dated 04.10.2016 is quashed. The petitioner is entitled for reinstatement in service. He may tender his joining before the District Superintendent of Education within two weeks. He is also held entitled for continuity in service from his initial date of appointment. 14. In the aforesaid facts and for the reasons indicated hereinabove the impugned order dated 04.10.2016 is quashed. The petitioner is entitled for reinstatement in service. He may tender his joining before the District Superintendent of Education within two weeks. He is also held entitled for continuity in service from his initial date of appointment. Salary of the petitioner as Intermediate-trained Teacher, if not paid to him, shall be paid on proper verification of records including the Attendance Register. 15. The writ petition stands allowed, in the aforesaid terms.” 12. Further, in W.P. (S) No. 988 of 2020, vide order dated 24.08.2022 passed by Coordinate Bench of this Court, it has been held Para No. 7 to 10, which reads as under: “7. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is the specific case of the petitioners that they were granted due permission by Village Education Committee for continuing their further education/ undertaking higher education / enhancement of qualification and as per the affidavit dated 08.08.2022, the Village Education Committee was the competent authority to grant such permission. It has been specifically stated by the petitioners in their writ petition that pursuant to the show-cause dated 16.07.2019 (Annexure 2), they had filed their reply before the authority bringing to the notice of the said authority that they were duly granted permission from Village Education Committee. However, only one such show cause reply has been annexed along with the writ petition and averment has been made that all the petitioners filed similar replies. From perusal of the impugned orders all dated 16.11.2019 (Annexure-4 series) nothing has been mentioned about the show cause replies filed by the petitioners and accordingly their show cause replies have not been considered. 8. Considering the materials which have been filed along with the writ petition and the specific averment of the petitioners that they were granted permission by Village Education Committee to pursue their higher education, the impugned orders which do not reflect consideration of the show cause reply by the petitioners, cannot be sustained in the eyes of law. 9. Accordingly, the impugned order being letter nos.1082, 1084, 1080 1081 and 1083 all dated 16.11.2019 are set aside and the matter is remitted back to the respondent no. 9. Accordingly, the impugned order being letter nos.1082, 1084, 1080 1081 and 1083 all dated 16.11.2019 are set aside and the matter is remitted back to the respondent no. 5 to pass fresh order in accordance with law taking into consideration the show cause reply already filed by the petitioners and also after verifying the records of the Village Education Committee with regard to the grant of permission to the petitioners for pursuing their higher education. The petitioners are directed to appear before the respondent no. 5 on 26.09.2022 along with the writ records, a copy of this order and the aforesaid judgements relied upon by the petitioners. Upon their appearance, the respondent no. 5 is directed to grant an opportunity of hearing to the petitioners or their authorized representative and pass appropriate reasoned order after verifying the records within a period of one month from 26.09.2022. The reasoned order should be communicated to each of the petitioners through speed post at the address which may be provided by them in their respective representations. 10. This writ petition is accordingly disposed of.” 13. Further, in Para-7 to 10 of Judgment dated 29.11.2022, passed by Coordinate Bench of this Court in W.P. (S) No. 1207 of 2022, it has been held as under: “7. From the aforesaid facts, it is clear that on the date when the petitioner applied for appointment as B.Ed. Trained teacher, he was a para teacher. His application was never challenged nor his status of para teacher was challenged by the State. The petitioner qualified in the said examination and even the District Education Establishment Committee recommended to appoint the petitioner. Now the respondents have taken a plea that the enhancement of his educational qualification will come in the way of the petitioner to be appointed and he cannot be treated as para teacher. 8. This argument of respondent cannot be accepted as at no point of time when the petitioner was serving as para teacher, he was served notice nor any action was taken against him nor his contract was terminated. Further, on the facts, it is admitted and undisputed that the petitioner did not work as para teacher during the period when he enhanced his educational qualification rather he joined as para teacher in the year 2009 though he was appointed in the year 2006. Further, on the facts, it is admitted and undisputed that the petitioner did not work as para teacher during the period when he enhanced his educational qualification rather he joined as para teacher in the year 2009 though he was appointed in the year 2006. No disciplinary action was taken against the petitioner nor his appointment was terminated. Thus, now the respondent cannot take a plea that the petitioner had enhanced his educational qualification and thus he ceased to be a para teacher. There cannot be any automatic termination of para teacher, there has to be an order terminating the agreement, which admittedly is not there in this case. 9. In that view, I find no plausible reason to withhold the issuance of appointment letter to the petitioner by the State. I direct the respondents to issue the said appointment letter to the petitioner within a period of four weeks from today. 10. Accordingly, this petition stands allowed.” 14. Before rejecting claim of the petitioner for appointment, she was not afforded any opportunity of hearing so as to justify herself as to under what circumstances she had obtained Degree. If any opportunity could have been given to her, she would have brought the reasoning as well as the permission granted to her by the Block Education Extension Officer. In absence of both, the non-consideration of her case is not justified and hence the arguments advanced by learned counsel for the respondents is rejected and respondents are directed to consider her case if there is no any other legal impediment. The Judgment relied upon by the State passed in L.P.A. No. 271 of 2018 is not applicable in the facts and circumstances of the instant case and the same is distinguishable. In the instant case, there is no objection by the respondents that she has not done her duty properly or diligently or there was any complaint against her rather a certificate dated 18.06.2018 was issued in her favour wherein it has specifically been stated that she was working as a Para Teacher since 18.04.2003 without any break in service and she was working to the utmost satisfaction of the department and regular remuneration was being paid to her. In the counter affidavit also, there is no such averment that she has not done her duty or found absent from the duty working as a Para Teacher rather in the advertisement as well as in the recruitment rules also, there is no such bar that the petitioner being a regular candidate, after taking due permission from the authority, cannot obtain the degree of intermediate course. There is no violation of any advertisement and recruitment rules. 15. In view of the aforesaid observations and directions, judicial pronouncement as quoted herein above, the respondent No. 3 is directed to consider candidature of the petitioner for appointment on the Post of Assistant Teacher, (Class I to V) under Para category, Subject – Khortha pursuant to Advertisement No. 07/2015. Let the entire exercise be completed within a period of eight weeks. 16. Resultantly the writ petition stands allowed.