Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 6388 of 2016 Md. Jawaid Eqbal … … Petitioner VERSUS1 State of Jharkhand 2. Director, Primary Education, Department of Human Resources Development, Government of Jharkhand, HEC Colony, P.O. & P.S. Dhurwa, District Ranchi. 3. Regional Deputy Director of Education, Chaibasa, P.O. & P.S. Chaibasa, District Singhbhum (West). 4. District Superintendent of Education, Chaibasa, P.O. & P.S. Chaibasa, District Singhbhum (West).
5. Area Education Officer, Chaibasa, P.O. & P.S. Chaibasa, District Singhbhum (West).
6. Block Education Officer, Chaibasa, P.O. & P.S. Chaibasa, District Singhbhum (West).
7. Managing Committee of the Urdu Middle School, Chaibasa, P.O. & P.S. Chaibasa, District Singhbhum (West). … ... Respondents CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For Petitioner :Mrs. M.M.Pal, Sr. Advocate :Ruby Pandey, Advocate :Seena Mukherjee, Advocate For Respondents :Mr. Amit Kumar, Advocate 05/ 07.09.2017 Heard learned counsel for the parties.
1. In the instant writ application, petitioner has prayed for quashing of the Order dated 30.08.2016, passed by respondent no. 2 and further not to give effect to the said order and further to approve proposition statement in respect of payment of salary to the petitioner and to pay salary including the arrears. Petitioner has further prayed for a direction not to discriminate the petitioner and to pay him salary at par with the similarly situated teachers working in the Minority School. 2. The facts in short is that petitioner was initially appointed to the post of Assistant Teacher on 19.06.2011 by the Managing Committee of Urdu Town Middle School, Main Road, Chakradharpur which is a NonGovernment Aided Minority School against the Advertisement dated 03.05.2011 and since then he is holding the post without any interruption. The background of the case is that 2 vide letter dated 29.07.2010, a request was made by the Managing Committee before the District Superintendent of Education wherein it was informed that four sanctioned posts for Matric Trained Teachers are vacant and, therefore, the permission may be accorded to fill up the same. District Superintendent of Education accorded the permission vide its letter dated 08.04.2011 and directed the Managing Committee to take appropriate steps to fill up the posts after following the conditions mentioned in letter no. 709, dated 04.03.1993. After obtaining permission of District Superintendent of Education, the Managing Committee of the School published an advertisement dated 02.05.2011 for appointment of four Assistant Teachers for the School in question. Petitioner being eligible in all aspects and qualified being M.Sc., B.Ed., applied and appeared in selection process and was duly appointed along with others and accordingly joined the post on 22.06.2011 and the said appointment was duly approved by the District Superintendent of Education, Singhbhum (West), Chaibasa. Pursuant to the queries raised by the Director, Primary Education, Human Resources Development Department, 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 05.02.2012 and the said Rule is applicable prospectively and since petitioner has been appointed on 19.06.2011, i.e. 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 3 for the first time guidelines have been issued for holding examination of Teachers' Eligibility Test and further required conditions have been incorporated. 3. It is case of the petitioner that he was appointed to the post of Assistant Teacher against the vacant sanctioned post after completing the selection procedure and therefore respondents cannot deny him to pay the salary. However, when petitioner was denied his genuine claim, he along with similarly situated others moved before this Court in W.P.(S) No. 6549 of 2013 and other analogous cases, which were disposed of vide order dated 14.10.2014 directing the Director, Primary Education (Respondent No.
2) to take an appropriate decision regarding recognization of the service of the individual petitioners and also approval of their proposition statements in accordance with law within a period of 12 weeks from the date of filing of representation. The said petitioners filed representation before the respondent no. 2 along with supporting documents and copy of the order dated 14.10.2014 passed by this Court with a prayer to approve proposition statement and to make payment of salary to the petitioner and others. However, instead of deciding representation of the petitioner in light of order dated 14.10.2014 of this Court, the respondents decided to refer the matter before the Screening Committee for further action. Being aggrieved, petitioner moved this Court in Contempt Case (Civil) No. 2631 of 2016 which was however dismissed in view of order dated 30.08.2016, passed by the respondent no. 2 wherein claim of the petitioner for approval of payment has been rejected pursuant to recommendation of the Screening Committee dated 27.07.2016. 4. Mrs. M.M.Pal, learned Counsel appearing on behalf of the petitioner submitted that the rejection order dated 31.08.2016 is illegal, improper, arbitrary, malafide, discriminatory as well as has been passed on extraneous circumstances and without application of mind and as such fit to be set aside. Learned Sr. Counsel further submitted that a favourable order dated 13.02.2015 had already been passed by the then Director in compliance to the order dated 4 14.10.2014 which could not have been revoked/ canceled or reviewed by the successorinoffice. Learned Sr. Counsel further submitted that no notice/ show cause was ever served to the petitioner before changing or altering the order dated 13.02.2015 before passing impugned order dated 31.08.2016. Learned Sr. Counsel further submitted that since the date of his initial appointment i.e. 19.06.2011, petitioner is holding the post of Assistant Teacher in the minority school and is discharging his duties regularly but till date no payment has been made and the respondent no. 2, being successorinoffice, instead of implementing the order dated 13.02.2015, has passed impugned order dated 30.08.2016 which is not at all sustainable as successorinoffice cannot revoke/ cancel or review the order of his/her predecessorinoffice. The earlier order dated 13.02.2015 had been passed in compliance of order and direction of this Court dated 14.10.2014 and as such, the action of the respondent no. 2, who is successorinoffice, is malafide, illegal and fit to be quashed. Learned Sr. Counsel further submitted that even if the reservation policy had not been duly followed, the petitioner cannot be harassed for the wrongs committed by the respondents. Learned Sr. Counsel further strenuously urges that the impugned order dated 30.08.2016 is not sustainable in the eyes of law in view of the fact that case of the petitioner has been rejected on the ground of not following reservation policy in appointment, which is not at all tenable in the eyes of law. To buttress her arguments, learned counsel has relied upon the Judgment passed by the Apex Court in the case of Sindhi Education Society and another Vs. Chief Secretary, Government of NCT of Delhi and others reported in (2010) 8 SCC 49.
5. On the other hand counter affidavit has been filed. Mr. Amit Kumar, learned JC to G.P.II on behalf of respondents – State. Learned counsel submitted that matter was referred before the Screening Committee on the basis of opinion of the internal financial advisor and on recommendation of the said Screening Committee, it was found that petitioner's appointment was made without following 5 reservation policy and in furtherance of such decision, impugned order has been passed by the respondent no. 2 which is fully sustainable in the eyes of law. Learned counsel further submitted that the writ petition has got no merits and is fit to be rejected. 6. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration and the impugned order dated 30.08.2016, passed by respondent no. 2 is fit to be quashed and set aside on the following grounds: “The earlier order dated 13.02.2015 granting benefits to the petitioner has been reviewed by the same authority vide its order dated 30.08.2006 is not permissible in the eye of law. It has been held in the case of R.T. Rangachari Vs. Secretary of State for India in Council reported in 1937 0 AIR (PC) 27 that in a case in which after government officials, duly competent and duly authorised in that behalf, have arrived honestly at one decision, their successorinoffice, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.” The same view has been reiterated in the case of State of M.P. Vs. Mansinghra reported in AIR 1958 MP 413. 7. It is highly improbable for successorinoffice to review order of predecessorinoffice and to pass a totally different order. Under the rules of executive business, there is no such power conferred upon the authority of the same designation to recall/ review the order of his/her predecessorinoffice on the same post. However, remedy lies in challenging the order either before the higher authority or before Court of law. Taking action suo motu which is punitive involving civil consequences without applying principles of natural justice, is violative of Article 14 of the Constitution of India and as such, is fit to be quashed and set aside. 8. Case of the petitioner has been rejected on the ground that policy of reservation/ roster has not been followed at the time of appointment. The Hon'ble Apex Court, in the case of Sindhi Education Society and another Vs. Chief Secretary, Government 6 of NCT of Delhi and others reported in (2010) 8 SCC 49, has held that State imposed reservation for SC/ ST Teachers in Minority School (aided or unaided) is impermissible. Minority schools have right to appoint persons compatible with their institution or culture so that right to conserve their socio economic cultural character is not violated. Merely receiving grantinaid perse would not made such school or institution “State” within the meaning of Article 12. No appointment can be declared to be irregular or invalid only on the ground that appointing authority did not adhere to the procedure and obtained roster clearance, the petitioner cannot be penalised. The Hon'ble Patna High Court in the case of Sanjit Kumar Vs. State of Bihar reported in Bihar Law Journals 807, para7 has held “in such situation if the appointing authority did not adhere to the procedure and obtain roster clearance, it would not be proper to penalise him. Besides foundational facts have not been stated by the respondents to suggest that the appointment of the petitioner was in excess of quota. In this view of the matter even if it is assumed that the roster clearance was not taken, in my opinion may not be sufficient justification to terminate services of the petitioner.” 9. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements, the impugned order dated 30.08.2016, passed by respondent no. 2 is quashed and set aside and the writ petition is allowed. The respondents are directed to release all consequential benefits to the petitioner within a period of eight weeks from the date of receipt/ production of a copy of this order. Needless to say that the respondents shall release entire benefits in favour of petitioner to which he is entitled i.e. arrears of salary along with current salary and other benefits as a result of quashment of impugned order. (Dr. S.N. Pathak, J.) Pallavi/