Ataul Ansari Vs. State of Jharkhand and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/76716
CourtJharkhand High Court
Decided OnAug-24-2016
AppellantAtaul Ansari
RespondentState of Jharkhand and Ors.
Excerpt:
1 in the high court of jharkhand at ranchi. w.p. (s) no. 274 of 2008 … ataul ansari, son of md. rajak ansari, resident of village & p.o. astajora, p.s. kathikund, district – dumka. … … petitioner -v e r s u s- 1.the state of jharkhand 2.principal secretary, human resource development department, government of jharkahnd, project building, p.o. dhurwa, p.s. jagarnathpur, district-ranchi. 3.director, primary education, human resource development department, government of jharkahnd, project building, p.o. dhurwa, p.s. jagarnathpur, district-ranchi. 4.regional deputy director of education, santhalpargana division, dumka, p.o. & p.s. dumka, district-dumka.5. deputy commissioner cum chairman district education establishment committee, dumka, p.o. & p.s. dumka, district-dumka. 6.the district superintendent of education, dumka, p.o. & p.s. dumka, district-dumka.7. director, r.g. polytechnic, g-extension-1, kriti nagar, new delhi. … respondents … coram: - hon’ble mr. justice pramath patnaik. … for the petitioner : - mr. bhanu kumar, advocate. for the respondent-state: - mrs. c. prabha, s.c. iv and mr. vishal kumar rai, j.c. to s.c. iv. for the respondent no. 6: - m/s. rajneesh vardhan and binit chandra, advocates. … c.a.v. on : - 31/03/2016 delivered on :24. 08/2016 ... per pramath patnaik, j.in the accompanied amended writ application, the petitioner has, inter alia, prayed for quashing of the impugned order, as contained in the memo dated 05.06.2008 (annexure-8), issued by the district superintendent of education, dumka, pertaining to termination of services and for issuance of writ of mandamus commanding upon the respondents for payment of salary for working period from february, 2006 till 05.06.2008.2. sans details, the facts, as disclosed in the writ application, is that the petitioner was appointed as an assistant teacher vide memo dated 28.02.2004, issued by the district superintendent of education, dumka upon the recommendation of the jharkhand public service commission. 2 the name of the petitioner found place at serial no. 32 as per annexure-1 to the writ petition. guideline has been issued by the principal secretary of education, in the letter dated 16.02.2004, wherein, it has been declared that those teachers who have obtained teachers training prior to 17.08.1995 from other states shall give an affidavit regarding genuineness of their teachers' training certificate. it is stated in the writ application that the petitioner has obtained teachers training certificate from r.g. polytechnic, kirti nagar, new delhi and after final examination of the sessions 1989-90. the genuineness of the teachers training certificate obtained by the petitioner has been confirmed by the letter dated 30.07.2004 by the director, r.g. polytechnic, new delhi. the petitioner after joining the post, has received his salary from 15.05.2004 till january, 2006, but to the utter consternation of the petitioner, his salary was stopped from february, 2006 onwards though the petitioner continued to discharge his duties till the date of his termination i.e. 05.06.2008. due to stoppage of salary, on facing acute financial crisis, the petitioner submitted his representation, and on receipt of the representation, the director, primary education, jharkhand, directed the d.s.e., dumka vide letter dated 27.12.2007 to take appropriate action after placing the matter before the district education establishment committee, dumka, as is evident from annexure-7 to the writ petition. initially, the writ petition was filed for payment of the arrears of salary and current salary, but during the pendency of the writ petition, the district superintendent of education, dumka vide impugned office order dated-05.06.2008, terminated the services of the petitioner with immediate effect as per annexure-8 to the writ petition. in the writ application, it has been submitted that in a similar matter, w.p. (s) no. 5344 of 2008, this court while disposing of the writ application vide order dated 11.12.2008, has been pleased to quash the impugned order, wherein, the teachers had obtained teachers training certificate from r.g. polytechnic, new delhi and in another matter in w.p. (s) no. 4124 of 2008, this court vide order dated 21.05.2015, has been pleased to quash the termination order, wherein, the question of recognition by the n.c.t.e. was in issue. it is submitted that the case of the petitioner is covered by the aforesaid judgments. 3 3. mr. bhanu kumar, learned counsel for the petitioner has vehemently submitted that the impugned order of termination has been passed without proper departmental proceeding as per the provisions of the bihar state nationalized elementary school teachers (transfer and disciplinary action) rules, 1994 and the amended rules, 1997. learned counsel for the petitioner further submits that the termination of services by the district superintendent of education, dumka without approval of the district education establishment committee, dumka is without jurisdiction. learned counsel for the petitioner further submits that the termination of the services of the petitioner on the ground that his teachers' training certificate is not valid, when as a matter of fact, the petitioner obtained certificate, prior to the implementation of the n.c.t.e act, when the recommendation by the n.c.t.e. was not mandatory, the termination of the services of the petitioner is in violation of articles 14 and 16 of the constitution of india.4. per contra, a counter affidavit has been filed on behalf of the respondents, controverting the averments made in the writ application. in the counter affidavit, it has been submitted that the appointment of the petitioner, as a primary school teacher was made with the condition that in case, the training certificate of the petitioner being found to be incorrect, the services of the petitioner will be terminated. the director, vide order dated 27.12.2007 has directed the district superintendent of education, dumka to make available the records of the petitioner regarding his appointment and to make an enquiry about genuineness and correctness of the certificate of the petitioner as per annexure-b to the counter affidavit. the district education establishment committee in its meeting dated-28.12.2007 decided that if the certificate of the petitioner is found to be fake then action will be taken to terminate the services of the petitioner as per annexure-d to the counter affidavit. the petitioner was asked to explain by filing show cause reply regarding the r.g. polytechnic being a fake institute. in pursuance to the second show cause notice, the petitioner submitted his reply. basing on the guidelines dated 16.02.2004 about the recruitment of primary school teachers, which inter alia, mentions that appointment of the candidates producing b. ed. certificate from other 4 states should produce the genuine certificate, otherwise cause of termination shall be invoked as per annexure-h to the counter affidavit. after coming to know about the forged and fake certificate, the respondents have taken appropriate decision regarding genuineness of the certificate before the district education establishment committee, dumka. thereafter, the services of the petitioner has been terminated.5. a counter affidavit has also been filed on behalf of the respondent no. 6 i.e. the director, r.g. polytechnic, new delhi, wherein, it has been mentioned that the petitioner took admission on 03.03.1990 and submitted the admission fee, tuition fee, examination fee and other miscellaneous charges and a receipt was duly granted to the petitioner bearing receipt no.22139 as per anexure-r/6-a and the petitioner was admitted for the session 1989-1990 for diploma in education (teachers training course) and after duly completing his teachers training course, he was issued the admission card for final examination 1989-1990 bearing roll no. 002755 and the result of the final examination of the petitioner, namely, diploma in education (teachers training course) was published in august, 1990 and the petitioner was awarded the certificate of teachers' training course, known as diploma in education on 14th august, 1990 as per annexure r/6- d. it has further been submitted that the petitioner has passed the teachers training diploma in education prior to implementation of the national council of teachers education (ncte) act, 1993. it has further been submitted that the report of the regional deputy director of education, santhal pargana division, dumka and arriving at the conclusion that r.g. polytechnic, new delhi was never in existence, is wholly incorrect and denied accordingly. it has further been submitted that the r.g. polytechnic, new delhi was registered in the year 1982-83 and continued till the year 1993-94 i.e. for about 11-12 years and after coming into implementation of the national council of teachers education (ncte) act, 1993, the institution was closed. it has further been submitted that the certificate of diploma in education (teacher's training course) granted by the r.g. polytechnic, new delhi has to be treated as a valid for the purpose of appointment to the post of assistant teacher in the government elementary schools, situated all over the country. 5 6. having heard the learned counsel for the respective parties and after bestowing my anxious consideration to the documents available on record, i am of the considered view that the impugned order dated 05.06.2008 (annexure-8), issued by the district superintendent of education, dumka, whereby the services of the petitioner has been terminated, is not legally sustainable for the following facts, reasons and judicial pronouncements : - (i) the controversy regarding validity of the petitioner's certificate obtained from r.g. polytechnic, new delhi is misconceived in view of the fact that the provisions of the national council of teachers education (ncte) act, 1993 (hereinafter to be referred as the 'n.c.t.e. act') came into effect, since 1st july, 1995, which cannot be applied with retrospective effect. the act, which came into existence subsequently could not possibly have been applied retrospectively to defeat the benefit of appointment genuinely granted on the basis of valid certificate issued by the institution, which was duly recognized. (ii) moreover, the counter affidavit filed by the respondent no. 6 supports the claim of the petitioner so far as genuineness and correctness of the certificate is concerned. (iii) in pursuance to the amendment carried out in the year 2006 in the n.c.t.e. act, it has been declared that the certificate obtained by the candidates, prior to coming into force of n.c.t.e. act, 1993 from any institution, which may not have been recognized, shall continue to be treated as valid, therefore, under such circumstances, the certificate produced by the petitioner, cannot be treated as invalid prior to coming into force of the n.c.t.e. act, 1993 and the appointment of the petitioner could not have been terminated. (iv) the regional deputy director of education, santhal pargana division, dumka without hearing the petitioner has come to the conclusion that the institute, namely, r.g. polytechnic, new delhi from where the petitioner has obtained his certificate, is a fake institute and this conclusion is contrary to the decision taken by the government as is reflected from a letter issued by the then secretary, department of human resources which indicates that the institute, which was a recognized institute by a university before the 6 n.c.e.r.t. came into force,would be deemed to be a valid institute and under this situation, r.g. polytechnic, new delhi recognized by a university can never be said to be a fake institute.7. on careful consideration of the aforesaid facts and the documents available on record and after hearing the parties at length, i find that the petitioner has been able to demonstrate foundational facts, warranting interference by this court. accordingly, the impugned order dated 05.06.2008 (annexure-8), issued by the district superintendent of education, dumka is hereby quashed and set aside and the respondents are directed to reinstate the petitioner in his former post with all consequential benefits including continuity in service and the respondents are directed to pay the salary for the period in which he has served in the school .8. with the aforesaid observations and directions, the writ petition is allowed. (pramath patnaik, j.) apk
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 274 of 2008 … Ataul Ansari, son of Md. Rajak Ansari, Resident of Village & P.O. Astajora, P.S. Kathikund, District – Dumka. … … Petitioner -V e r s u s- 1.The State of Jharkhand 2.Principal Secretary, Human Resource Development Department, Government of Jharkahnd, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi. 3.Director, Primary Education, Human Resource Development Department, Government of Jharkahnd, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi. 4.Regional Deputy Director of Education, Santhalpargana Division, Dumka, P.O. & P.S. Dumka, District-Dumka.

5. Deputy Commissioner Cum Chairman District Education Establishment Committee, Dumka, P.O. & P.S. Dumka, District-Dumka. 6.The District Superintendent of Education, Dumka, P.O. & P.S. Dumka, District-Dumka.

7. Director, R.G. Polytechnic, G-Extension-1, Kriti Nagar, New Delhi. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. Bhanu Kumar, Advocate. For the Respondent-State: - Mrs. C. Prabha, S.C. IV and Mr. Vishal Kumar Rai, J.C. to S.C. IV. For the Respondent No. 6: - M/s. Rajneesh Vardhan and Binit Chandra, Advocates. … C.A.V. On : - 31/03/2016 Delivered On :

24. 08/2016 ... Per Pramath Patnaik, J.

In the accompanied amended writ application, the petitioner has, inter alia, prayed for quashing of the impugned order, as contained in the memo dated 05.06.2008 (Annexure-8), issued by the District Superintendent of Education, Dumka, pertaining to termination of services and for issuance of writ of Mandamus commanding upon the respondents for payment of salary for working period from February, 2006 till 05.06.2008.

2. Sans details, the facts, as disclosed in the writ application, is that the petitioner was appointed as an Assistant Teacher vide memo dated 28.02.2004, issued by the District Superintendent of Education, Dumka upon the recommendation of the Jharkhand Public Service Commission. 2 The name of the petitioner found place at Serial No. 32 as per Annexure-1 to the writ petition. Guideline has been issued by the Principal Secretary of Education, in the letter dated 16.02.2004, wherein, it has been declared that those teachers who have obtained Teachers Training prior to 17.08.1995 from other States shall give an Affidavit regarding genuineness of their Teachers' Training Certificate. It is stated in the writ application that the petitioner has obtained Teachers Training Certificate from R.G. Polytechnic, Kirti Nagar, New Delhi and after final examination of the Sessions 1989-90. The genuineness of the Teachers Training Certificate obtained by the petitioner has been confirmed by the letter dated 30.07.2004 by the Director, R.G. Polytechnic, New Delhi. The petitioner after joining the post, has received his salary from 15.05.2004 till January, 2006, but to the utter consternation of the petitioner, his salary was stopped from February, 2006 onwards though the petitioner continued to discharge his duties till the date of his termination i.e. 05.06.2008. Due to stoppage of salary, on facing acute financial crisis, the petitioner submitted his representation, and on receipt of the representation, the Director, Primary Education, Jharkhand, directed the D.S.E., Dumka vide letter dated 27.12.2007 to take appropriate action after placing the matter before the District Education Establishment Committee, Dumka, as is evident from Annexure-7 to the writ petition. Initially, the writ petition was filed for payment of the arrears of salary and current salary, but during the pendency of the writ petition, the District Superintendent of Education, Dumka vide impugned Office order dated-05.06.2008, terminated the services of the petitioner with immediate effect as per Annexure-8 to the writ petition. In the writ application, it has been submitted that in a similar matter, W.P. (S) No. 5344 of 2008, this Court while disposing of the writ application vide order dated 11.12.2008, has been pleased to quash the impugned order, wherein, the teachers had obtained Teachers Training Certificate from R.G. Polytechnic, New Delhi and in another matter in W.P. (S) No. 4124 of 2008, this Court vide order dated 21.05.2015, has been pleased to quash the termination order, wherein, the question of recognition by the N.C.T.E. was in issue. It is submitted that the case of the petitioner is covered by the aforesaid judgments. 3 3. Mr. Bhanu Kumar, learned counsel for the petitioner has vehemently submitted that the impugned order of termination has been passed without proper departmental proceeding as per the provisions of the Bihar State Nationalized Elementary School Teachers (Transfer and Disciplinary action) Rules, 1994 and the amended Rules, 1997. Learned counsel for the petitioner further submits that the termination of services by the District Superintendent of Education, Dumka without approval of the District Education Establishment Committee, Dumka is without jurisdiction. Learned counsel for the petitioner further submits that the termination of the services of the petitioner on the ground that his Teachers' Training Certificate is not valid, when as a matter of fact, the petitioner obtained certificate, prior to the implementation of the N.C.T.E Act, when the recommendation by the N.C.T.E. was not mandatory, the termination of the services of the petitioner is in violation of Articles 14 and 16 of the Constitution of India.

4. Per contra, a counter affidavit has been filed on behalf of the respondents, controverting the averments made in the writ application. In the counter affidavit, it has been submitted that the appointment of the petitioner, as a Primary School Teacher was made with the condition that in case, the Training certificate of the petitioner being found to be incorrect, the services of the petitioner will be terminated. The Director, vide order dated 27.12.2007 has directed the District Superintendent of Education, Dumka to make available the records of the petitioner regarding his appointment and to make an enquiry about genuineness and correctness of the certificate of the petitioner as per Annexure-B to the counter affidavit. The District Education Establishment Committee in its meeting dated-28.12.2007 decided that if the certificate of the petitioner is found to be fake then action will be taken to terminate the services of the petitioner as per Annexure-D to the counter affidavit. The petitioner was asked to explain by filing show cause reply regarding the R.G. Polytechnic being a fake institute. In pursuance to the second show cause notice, the petitioner submitted his reply. Basing on the guidelines dated 16.02.2004 about the recruitment of Primary School Teachers, which inter alia, mentions that appointment of the candidates producing B. Ed. Certificate from other 4 States should produce the genuine certificate, otherwise cause of termination shall be invoked as per Annexure-H to the counter affidavit. After coming to know about the forged and fake certificate, the respondents have taken appropriate decision regarding genuineness of the certificate before the District Education Establishment Committee, Dumka. Thereafter, the services of the petitioner has been terminated.

5. A counter affidavit has also been filed on behalf of the Respondent No. 6 i.e. the Director, R.G. Polytechnic, New Delhi, wherein, it has been mentioned that the petitioner took admission on 03.03.1990 and submitted the Admission fee, tuition fee, examination fee and other miscellaneous charges and a receipt was duly granted to the petitioner bearing Receipt No.22139 as per Anexure-R/6-A and the petitioner was admitted for the Session 1989-1990 for Diploma in Education (Teachers Training Course) and after duly completing his Teachers Training Course, he was issued the Admission Card for final examination 1989-1990 bearing Roll No. 002755 and the result of the final examination of the petitioner, namely, Diploma in Education (Teachers Training Course) was published in August, 1990 and the petitioner was awarded the certificate of Teachers' Training Course, known as Diploma in Education on 14th August, 1990 as per Annexure R/6- D. It has further been submitted that the petitioner has passed the Teachers Training Diploma in Education prior to implementation of the National Council of Teachers Education (NCTE) Act, 1993. It has further been submitted that the report of the Regional Deputy Director of Education, Santhal Pargana Division, Dumka and arriving at the conclusion that R.G. Polytechnic, New Delhi was never in existence, is wholly incorrect and denied accordingly. It has further been submitted that the R.G. Polytechnic, New Delhi was registered in the year 1982-83 and continued till the year 1993-94 i.e. for about 11-12 years and after coming into implementation of the National Council of Teachers Education (NCTE) Act, 1993, the institution was closed. It has further been submitted that the certificate of Diploma in Education (Teacher's Training Course) granted by the R.G. Polytechnic, New Delhi has to be treated as a valid for the purpose of appointment to the post of Assistant Teacher in the Government Elementary Schools, situated all over the country. 5 6. Having heard the learned counsel for the respective parties and after bestowing my anxious consideration to the documents available on record, I am of the considered view that the impugned order dated 05.06.2008 (Annexure-8), issued by the District Superintendent of Education, Dumka, whereby the services of the petitioner has been terminated, is not legally sustainable for the following facts, reasons and judicial pronouncements : - (i) The controversy regarding validity of the petitioner's certificate obtained from R.G. Polytechnic, New Delhi is misconceived in view of the fact that the provisions of the National Council of Teachers Education (NCTE) Act, 1993 (hereinafter to be referred as the 'N.C.T.E. Act') came into effect, since 1st July, 1995, which cannot be applied with retrospective effect. The Act, which came into existence subsequently could not possibly have been applied retrospectively to defeat the benefit of appointment genuinely granted on the basis of valid certificate issued by the institution, which was duly recognized. (ii) Moreover, the counter affidavit filed by the Respondent No. 6 supports the claim of the petitioner so far as genuineness and correctness of the certificate is concerned. (iii) In pursuance to the amendment carried out in the year 2006 in the N.C.T.E. Act, it has been declared that the certificate obtained by the candidates, prior to coming into force of N.C.T.E. Act, 1993 from any institution, which may not have been recognized, shall continue to be treated as valid, therefore, under such circumstances, the certificate produced by the petitioner, cannot be treated as invalid prior to coming into force of the N.C.T.E. Act, 1993 and the appointment of the petitioner could not have been terminated. (iv) The Regional Deputy Director of Education, Santhal Pargana Division, Dumka without hearing the petitioner has come to the conclusion that the Institute, namely, R.G. Polytechnic, New Delhi from where the petitioner has obtained his certificate, is a fake institute and this conclusion is contrary to the decision taken by the Government as is reflected from a letter issued by the then Secretary, Department of Human Resources which indicates that the Institute, which was a recognized Institute by a University before the 6 N.C.E.R.T. came into force,would be deemed to be a valid Institute and under this situation, R.G. Polytechnic, New Delhi recognized by a University can never be said to be a fake Institute.

7. On careful consideration of the aforesaid facts and the documents available on record and after hearing the parties at length, I find that the petitioner has been able to demonstrate foundational facts, warranting interference by this Court. Accordingly, the impugned order dated 05.06.2008 (Annexure-8), issued by the District Superintendent of Education, Dumka is hereby quashed and set aside and the respondents are directed to reinstate the petitioner in his former post with all consequential benefits including continuity in service and the respondents are directed to pay the salary for the period in which he has served in the school .

8. With the aforesaid observations and directions, the writ petition is allowed. (Pramath Patnaik, J.) APK