Md. Mojammel Haque vs State Of Jharkhand
2021 Latest Caselaw 357 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
            L.P.A. No.678 of 2018
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Md. Mojammel Haque, son of Md. Dilshad Ali, resident of village Chandittalla, P.O. Jhirkarhatti, P.S. Pakur(M), District-Pakur .... .... Appellant Versus

1. State of Jharkhand

2. The Deputy Commissioner, Pakur, P.O. and P.S. Pakur, District-Pakur

3. The District Superintendent of Education, Pakur, P.O. and P.S. Pakur, District-Pakur

4. The Block Co-ordination Officer, Pakur, P.O. and P.S. Pakur, District- Pakur

5. The Secretary, Gram Shiksha Samiti, Chanditalla, P.O. Jhikarhatti, P.S. Pakur (M), District-Pakur

6. The President, Gram Shiksha Samiti, Chanditalla, P.O. Jhikarhatti, P.S. Pakur (M), District-Pakur

7. Md. Jiyarul Shekh, son of Antur Rajjak, resident of village-Kakadboha, P.O. Jhikarhatti, P.S. Pakur (M), District-Pakur

...... ..... Respondents

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant          : Mr. Uday Choudhary, Advocate
For the Resp.-State        : Mr. Sharabhil Ahmed, AC to SC(Mines)-I
For the Resp. No.7         : Mr. Rajeeva Sharma, Sr. Advocate

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 ORAL JUDGMENT
07/Dated: 25.01.2021

The matter has been heard with the consent of learned counsel for

the parties through video conferencing. There is no complaint about any

audio and visual quality.

L.P.A. No.678 of 2018

The instant intra-court appeal is directed against the order/judgment

dated 28.09.2018 passed by the learned Single Judge of this Court in

W.P.(S) No.5374 of 2009, whereby and whereunder, the writ petition has

been dismissed declining to interfere with the selection of respondent no.7

against the post of Para Teacher made by Gram Shiksha Samiti on

24.11.2007.

2. The brief facts of the case are required to be referred herein which

reads as hereunder:-

The writ petitioner had applied for the post of Para Teacher for

Primary School, Chanditalla, for which, Gram Shiksha Samiti was held on

02.07.2007 by the Samiti. The writ petitioner was found to be eligible and

accordingly, the Gram Siksha Samiti with the consent of Aam Sabha has

selected the writ petitioner for the aforesaid post vide its meeting dated

02.07.2007.

The writ petitioner was selected amongst seven candidates who

had participated in the process of selection, wherein, the writ petitioner

was found to be secured highest marks and was the only person

belonging to the same village. Thereafter, another Aam Sabha was

conveyed on 23.09.2007 on account of some objection made by the Block

Co-ordination Officer on the selection made by Samiti on 02.07.2007.

Again in the meeting held on 23.09.2007, the writ petitioner was selected

as Para Teacher with the consent of Aam Sabha and Samiti but the writ

petitioner has not received appointment letter.

A meeting was conducted again on 24.11.2007 of the Gram Shiksha

Samiti, in which the respondent no.7 has been selected as Para Teacher

by the Samiti.

The reason was recorded for selection of respondent no.7 to the

effect that the selection of respondent no.7 as Para Teacher has been

found to be fit, as because there was not a single suitable candidate

available in the village.

The writ petitioner has contended that although he has passed "Alim

Degree" in the year 2007 which is equivalent to graduate degree as has

been notified by the Jharkhand Academic Council dated 16.09.2006 and

therefore, the writ petitioner after found to be eligible, has rightly been

selected twice but only in order to accommodate the respondent no.7, no

appointment letter has been issued in his favour rather the respondent

no.7 has been appointed and to that effect, a representation was filed

before the competent authority but having not giving any heed to that, the

writ petitioner has approached to this court by invoking the jurisdiction of

this Court under Article 226 of the Constitution of India praying inter-alia

therein for quashing of selection of respondent no.7.

The State has appeared and filed a detailed counter affidavit,

wherein, it has been stated that although the writ petitioner was found to

be successful in the meeting held on 02.07.2007 of the Aam Sabha apart

from six other candidates, basis upon the performance of one or the other

candidate, a merit list was prepared in which, the writ petitioner has been

found to be top in the merit list which was sent by the Village Education

Committee for due approval to the Block Level Committee and the Block

Level Committee has found that School in question is a Hindi Medium

School and there is no Unit for "Urdu Teacher" and therefore, asked

clarification from the Secretary-cum-Head Teacher from the concerned

school as to how the teaching of Urdu was being given without any

creation of post of Urdu Teacher.

Thereafter, again a meeting was conducted on 24.11.2007, in which

the respondent no.7 has been selected as Para Teacher in the said school

assigning the reason that the respondent no.7 is the student of B.A. Part-II

and belongs to adjacent village Karkarbona.

Thereafter, the selection of respondent no.7 was approved by the

Block Level Committee in its meeting dated 26.11.2007.

It has further been stated that from the comparative assessment of

the candidature of the writ petitioner vis-à-vis the respondent no.7, it was

found that the qualification of the writ petitioner is from Madarsa Board

while the teaching of Urdu Syllabus or other subject is not possible in a

Hindi Medium Government School without creation of Urdu Teacher post

and as such, the writ petitioner has not found to be a suitable candidate

for the said post, hence, the respondent no.7 has been appointed.

The respondent no.7 had appeared and contested the case by

taking the plea before the learned Single Judge that he has been

appointed after following the due procedure of law and he is continuing on

the post in question since after his selection.

Reply to counter affidavit has been filed by the writ petitioner,

wherein, it has been stated that the writ petitioner was not appointed as

Urdu Teacher rather he has only been appointed taking into consideration

the "Alim Degree" which is equivalent to graduation and while taking such

degree, he has studied Hindi, Economics, English as a compulsory

subject along with History as optional subject.

In his Maulvi Examination which is equivalent to intermediate, he

has cleared compulsory subjects like English, Math and Hindi etc.

Further, it has been stated that the writ petitioner belongs to the

same village and had the highest qualification amongst the candidates

who had participated in the process of selection, while the respondent

no.7 belongs to other village and has got less qualification in comparison

to that of the writ petitioner.

The reference of guidelines has been made issued by the Human

Resource Development Department, wherein, it has been provided to give

preference to the local villagers and highly qualified candidates for the

purpose of selection of Para Teachers and taking into consideration this

aspect of the matter, the writ petitioner has been selected twice by the

Village Committee but subsequently reviewing its own decision, the

respondent no.7 has been appointed.

The learned Single Judge after taking into consideration the rival

submissions of the learned counsel for the parties has declined to

interfere with the selection of respondent no.7 by dismissing the writ

petition which has been assailed before this Court under the intra-court

appeal.

3. Mr. Uday Choudhary, learned counsel appearing for the appellant-

writ petitioner has submitted that the writ Court has not appreciated the

fact that the Village Level Committee has selected the writ petitioner twice

taking into consideration his qualification and his place of resident and

after finding him more meritorious in comparison to other candidates, he

has been selected vide its meeting dated 02.07.2007 but the appointment

letter has not been issued and again a meeting was conducted on

23.09.2007, in which, again the decision taken by the Committee on

02.07.2007 has been reiterated by finding the writ petitioner fit for

selection as Para Teacher but instead of issuing appointment letter, the

Committee has recommended the respondent no.7 to be appointed as

Para Teacher mainly on the ground that the writ petitioner has got "Alim

Degree" which is equivalent to graduate treating him to be the teacher of

Urdu Subject, without appreciating the fact that while taking the "Alim

Degree", he has also studied Hindi, Economics, English as a compulsory

subject along with History as optional subject, in which he has found to be

qualified and hence, the reasoning given by the learned Single Judge that

since the writ petitioner has obtained "Alim Degree" and since there is no

post of Urdu Teacher, it would not be appropriate for selection of Urdu

Teacher in the said School, is contrary to the factual situation since herein

the writ petitioner although has got "Alim Degree" but along with other

subjects, he has also been found to be qualified, hence, it cannot be

construed that since the writ petitioner has obtained "Alim Degree", he

could only be able to teach Urdu subject, is absolutely incorrect finding of

the learned Single Judge.

Further, submission has been made by referring to annexure-6 and

annexure-7 to the memo of appeal, wherein "Alim Degree" has been

treated to be equivalent to graduation by the Jharkhand Academic Council

by following the decision taken by the Bihar School Examination Board

based upon the order passed by the Personnel Administrative Reforms

Department of the Erstwhile State of Bihar as contained in order no.8

R/1010/76 C.K./4226 dated 01.03.1977 and hence, once "Alim Degree"

has been treated to be equivalent to graduation, there is no reason of

denial of candidature of the writ petitioner on the basis of the fact that the

writ petitioner has not been able to produce the graduation degree.

In that view of the matter, the order passed by the learned Single

Judge is not sustainable in the eye of law, as such, the same is fit to be

set aside.

4. Mr. Sharabhil Ahmed, learned AC to SC(Mines)-I appearing for the

State of Jharkhand, has submitted that candidature of the writ petitioner

has not found to be appropriate in comparison to that of the respondent

no.7 since he has participated in the process of selection on the basis of

"Alim Degree" while the respondent no.7 has produced the degree of

graduation and as such, after taking into consideration the fact that the

competent authority has found it appropriate to select the respondent no.7

since according to the concerned authority, there is no post of Urdu

Teacher in the said School.

5. Mr. Rajeeva Sharma, learned senior counsel appearing for the

respondent no.7 has submitted that the respondent no.7 is working since

the year 2007 after having been appointed following the due procedure

and finding him fit on the basis of the relevant qualification which he was

possessed at the time of selection and therefore, the selection of

respondent no.7 may not be interfered with.

He has pointed out by rebutting the contention raised by the learned

counsel appearing for the writ petitioner about treating the "Alim Degree"

equivalent to graduation and by referring to the applicability of annexure-6,

which is not applicable since the same is only applicable in the case of

new syllabus but nothing has been said in the entire pleading as to

whether the writ petitioner has taught "Alim Degree" on the basis of the

new syllabus.

6. We have heard the learned counsel for the parties, perused the

material available on record as also the finding recorded in the impugned

order.

7. The admitted fact herein is that the writ petitioner had participated in

the process of selection along with other six candidates. He had produced

"Alim Degree" which is equivalent to graduation.

It is also admitted that "Alim Degree" has been treated to be

equivalent on the basis of the decision of the Bihar School Examination

Board based upon the decision of the Personnel Department of the State

of Bihar dated 01.03.1977 as would appear from annexure-6 and

annexure-7 appended to the memo of appeal.

8. The writ petitioner has been found to be more meritorious amongst

all the candidates and has been found to be top of the list as would

appear from the comparative merit list brought on record in the body of

memo of appeal.

The writ petitioner has been selected by taking decision by the

Committee on 02.07.2007. Again the question of appointment of the writ

petitioner has been put in the meeting held on 23.09.2007, in which also

the decision taken by the Committee on 02.07.2007 has been reiterated

but the appointment letter has not been issued.

Again a meeting was conducted on 24.11.2007, in which the

candidature of the respondent no.7 has been considered and he has been

selected.

The writ petitioner has questioned the selection of respondent no.7

inter-alia on the ground that no reason has been assigned for non-

issuance of appointment letter in favour of the writ petitioner, although the

question of selection has been considered twice and he having with the

"Alim Degree" which is equivalent to "graduation" as has been accepted

by the Jharkhand Academic Council on the basis of the Bihar School

Examination Board based upon the circular of the State of Bihar through

its Personnel Department dated 01.03.1977.

It has further not been disputed that while seeking "Alim Degree",

the writ petitioner has also qualified in the other subjects like Hindi,

Economics and English including Urdu.

9. The writ Court has dismissed the writ petition on the ground that at

the relevant point of time, the school in question was a Hindi Medium

School and no Unit of "Urdu Teacher" was sanctioned.

The question is that when the writ petitioner has produced the "Alim

Degree" which is equivalent to graduation as has been accepted by the

Jharkhand Academic Council whether merely on the ground of "Alim

Degree", the candidature of the writ petitioner can be thrown out?

The fact which has been elaborated by the learned State Counsel

vis-à-vis the learned Senior Counsel appearing for the respondent no.7

that at the relevant point of time, the School in question was a Hindi

Medium School and no Unit for "Urdu Teacher" was sanctioned. That

cannot be a reason for non-issuance of appointment letter in favour of the

writ petitioner as because the writ petitioner at the time of obtaining "Alim

Degree" has also studied the other subjects like Hindi, Economics, English

as a compulsory subject along with History as optional subject.

It is not to be construed that merely because the writ petitioner has

obtained "Alim Degree" which is equivalent to graduation, he will have to

teach Urdu subject rather his candidature has been seen by the

competent body on the basis of having been graduate i.e., by virtue of

obtaining "Alim Degree" as equivalent to graduation and taking into

consideration this aspect of the matter, his candidature has been accepted

and he has been found to be most suitable amongst all the other

candidates.

The question of no Unit of "Urdu Teacher", cannot be a ground for

rejecting the candidature of the writ petitioner on the ground that the writ

petitioner has got "Alim Degree", he would only be able to teach Urdu

subject, cannot be accepted by this Court and further the question of

School having been Hindi Medium School cannot be treated to be a

reason of non-selection of a candidate who is having "Alim Degree" which

is equivalent to graduation, more particularly for the reason that he has

also passed in other subjects like Hindi, Economics and English including

Urdu.

Further, the writ petitioner is of the same village and his candidature

has been considered twice and the Village Committee has also accepted

his candidature by granting approval of the decision taken in the meeting

held on 02.07.2007.

So far as the question of selection of respondent no.7 is concerned,

as he also possess all requisites qualification, it is to be seen in

comparison with the qualification which is possessed by the writ petitioner.

10. It has not been recorded by the learned Single Judge that the writ

petitioner is less qualified in comparison to that of respondent no.7 rather

the only reason assigned is that the school being a Hindi Medium School

and no Unit of "Urdu Teacher" has been sanctioned, the candidature of the

writ petitioner has been found to be not proper but, as we have already

referred hereinabove that the same cannot be the reason of

disqualification.

The only concern of the authority would have been to see as to

whether along with the "Alim Degree", the candidate has qualified in other

subjects or not?

11. Admittedly, the writ petitioner has qualified in other subjects like

Hindi, Economics, English as a compulsory subject along with History as

optional subject and therefore, the reason of non-selection of the writ

petitioner and selection of respondent no.7, basing upon which, the writ

petition has been dismissed, cannot be said to be proper.

12. So far as the contention raised by Mr. Sharma, learned Senior

Counsel appearing for the respondent no.7 that respondent no.7 is

working since 2007 so his appointment may not be interfered with is

concerned, we are not impressed with this argument, reason being that if

any appointment is contrary to the rules/regulations and without

considering the candidature of proper candidate, the same has to go

irrespective of length of service.

13. Herein, the writ petitioner has been selected and found to be

qualified twice but ignoring his candidature, the respondent authorities

have appointed the respondent no.7 and thereby, the candidature of the

writ petitioner has been denied being not found to be fit in comparison to

that of the candidature of respondent no.7, which according to us, is not

proper and once the process of selection itself is improper, interference

under the power of judicial review under Article 226 of the Constitution of

India is to be resorted to and if it is found that selection of respondent no.7

is found to be improper, the same would be considered to be nullity right

from its inception.

14. It is settled position of law that at the inception if any illegality has

been committed, due to subsequent development, the said illegality

cannot be nullified. Reference in this regard may be made to the judgment

rendered by the Hon'ble Apex Court in State of Orissa Vrs. Mamata

Mohanty, (2011) 3 SCC 436.

Further, a right of law exists only when it has lawful origin.

Reference in this regard may be made to the judgments rendered in Upen

Chandra Gogoi Vrs. State of Assam and Ors., AIR 1998 Supreme

Court 1289, Mangal Prasad Tamoli (Dead) by L.Rs Vrs. Narvedshwar

Mishra (Dead) by L.Rs. and Ors., AIR 2005 Supreme Court 1964,

Ritesh Tewari and Anr. Vrs. State of U.P. and Ors., AIR 2010 Supreme

Court 3823.

15. Applying the aforesaid proposition of law in the case in hand, we are

of the view that the appointment of respondent no.7 cannot be said to be

proper ignoring the rightful candidature of the writ petitioner on the ground

as stated hereinabove and therefore, the appointment of respondent no.7

suffers from infirmity since its inception and merely by virtue of the fact

that he has rendered his duty since long the wrong committed right at

inception cannot be ignored.

16. In that view of the matter, since the very appointment of respondent

no.7 by ignoring the candidature of the writ petitioner, who is having the

rightful claim to be appointed as per the decisions of the committee dated

02.07.2007 and 23.09.2007 suffers from factual illegality, no right can be

said to have accrued in favour of the respondent no.7 due to continuity in

service since long.

17. Therefore, in the entirety of the facts and circumstance of the case,

this Court is of the view that the learned Single Judge ought to have

appreciated these aspects of the matter before reaching to the conclusion

aforesaid.

18. Accordingly, the order passed by the learned Single Judge requires

interference.

19. In view thereof, the order dated 28.09.2018 is quashed and set

aside.

20. In the result, the instant appeal stands allowed.

21. In consequence thereof, selection and appointment of Respondent

No.7 is quashed and set aside.

22. The writ petition being W.P.(S) No.5374 of 2009 stands allowed with

a direction upon the respondents to issue appointment letter in favour of

the writ petitioner preferably within three weeks' from the date/receipt of

copy of this order.

23. Pending Interlocutory Application(s), if any, stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-

.A.F.R.