Jharkhand High Court
Riddhi Rani Dey vs State Of Jharkhand Through Its ... on 9 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 969 of 2020
Riddhi Rani Dey ... Petitioner
Versus
1. State of Jharkhand through its Secretary, School and Education & Literacy
Department, MDI Building, Dhurwa, Ranchi
2. The Director, School and Education & Literacy Department, MDI Building,
Dhurwa, Ranchi
3. The Deputy Director, Primary Education and Literacy Department, MDI
Building, Dhurwa, Ranchi
4. The Deputy Secretary, School Education & Literacy Department, MDI
Building, Dhurwa, Ranchi
5. The District Superintendent of Education, Deoghar
6. The Secretary, Dinabandhu Middle School (Bengali Linguistic Minority) BLC
Road, Deoghar
7. The Principal, Dinabandhu Middle School (Bengali Linguistic Minority) BLC
Road, Deoghar ... ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through: Video Conferencing)
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For Petitioner : Mr. Prashant Pallav, Advocate
For Respondents : Mr. Manish Mishra, GP-V
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05/ 09.06.2021 The petitioner has approached this Court with a prayer for quashing of
the order contained in Memo No. 1808 dated 29th of November, 2019 (Annexure-
15) wherein the prayer of the petitioner for determination and disbursement of
salary has been denied by the respondent. Further, prayer has been made for
quashing the order bearing No. 24/30 dated 07th of January, 2020 (Annexure-16)
and letter bearing No. MC/11/2020 dated 8th of February, 2020 (Annexure-17),
whereby and wherein, an order has been given to the Competent Authorities that
the service of the petitioner be no longer taken and the petitioner has been asked
to stop discharging her duties. Further, prayer has been made for a direction upon
the respondents to pay the current salary and arrears of salary w.e.f. 22.03.2012
with all consequential benefits to the petitioner, which has not been paid to her
since joining.
2. The factual exposition as has been delineated in the writ petition is that
on 20.01.2009, an advertisement was issued for appointment of Bengali Trained
Permanent Assistant Teacher in daily newspaper in Dinabandhu Middle School,
Deoghar. Pursuant thereto, the petitioner, fulfilling all the requisite qualifications as
per the terms and conditions of the Advertisement, applied for the same. On
02.02.2012, a call letter, issued by the respondent No.6, was received by the
petitioner for appearing in the written test as well as interview, which was scheduled
to be held on 11.02.2012. The petitioner appeared in the said written test and
interview and subsequent thereto, a detailed chart was prepared by the Members
of Selection Committee in which petitioner has been declared as successful
candidate and the name of the petitioner appeared at Sl. No. 03 in the select/chart
list dated 13.02.2021 and such, vide recommendation dated 13.02.2012, her name
was recommended for appointment to the post of Assistant Teacher in the said
school. The said recommendation has been confirmed on the basis of the report of
the Selection Committee by the respondents. Thereafter, the petitioner vide Ref.
No. 10 dated 20.03.2012, has been appointed as Assistant Teacher at Dinabandhu
Middle School on contractual basis. On 22.03.2012, the petitioner joined the
services in the said school and was discharging her duties to the satisfaction of the
respondents concerned. Thereafter, the respondents No.6 vide its letter dated
24.03.2012 recommended the case of the petitioner for approval of her
appointment before the respondent No. 5. In the meantime, the petitioner had duly
passed the examination of Teachers Eligibility Test and a certificate dated
28.05.2013 to that extent was issued in her favour by the Jharkhand Academic
Council.
3. It is further the case of the petitioner that the Director, Primary
Education vide its letter dated 22.05.2014 issued a direction to all DSE in the State
of Jharkhand to pay the salary of the teachers appointed pursuance to the Primary
School Teacher Appointment Rule, 2012. Accordingly, vide letters dated 19.01.2015
and 18.05.2016, the Director, Primary Education had sent all the documents for
fixation of pay scale of the petitioner and the petitioner had also given several
representation before the respondents for releasing of her salary, but no heed was
paid. The petitioner had approached this Court by filing a writ petition being W.P.(S)
No.5140 of 2016 and vide order dated 09th August, 2018, this Court directed the
respondents to take a decision, in accordance with law and also directed that if
approval is accorded by the Director, Primary Education, the benefits accrued to
the petitioner i.e. salary/arrears of the salary should be paid to her from the date of
joining. As the said order of this Court was not complied within stipulated time, the
petitioner again approached this Court by filing a Cont. (Civil) case being Cont.
(Civil) Case No. 779 of 2019 and during the pendency of the said contempt
application, the respondents vide impugned order dated 29.11.2019 took a decision
that the petitioner is not entitled for fixation of pay scale as the appointment of the
petitioner seems to be suspicious and as such, the said Contempt application was
dropped. Further, vide impugned orders dated 07.01.2020 and 08.02.2020, the
petitioner was stopped from discharging her duties as process for the payment of
the dues were pending at the Directorate level. Hence, this writ petition has been
preferred by the petitioner, challenging the impugned orders dated 29.11.2019,
07.01.2020 and 08.02.2020.
5. Mr. Prashant Pallav, learned counsel for the petitioner submits that the
respondents have raised suspicion on the appointment of the petitioner with mala
fide intention as the petitioner was duly appointed pursuant to the Advertisement
dated 20th January, 2009 on the basis of marks of written test as well as interview
and has been discharging her duties since 22nd March, 2012 and also the
appointment of the petitioner was duly approved by the Competent Authority. The
Secretary of the School issued appointment letter in favour of the petitioner against
the sanctioned post and Principal of the said School vide letter dated 24.03.2012
forwarded a letter to District Superintendent of Education, appraising him that the
appointment of the petitioner has been done on the basis of due process of law and
in consonance of Primary School Teacher Appointment Rules, 2012, which was
never objected by the District Superintendent of Education on an initial level. He
further submits that though the advertisement was floated in the year, 2009 and
appointment was made in the year, 2012, the delay in appointment cannot vitiate
the selection process and there is no mistake on the part of the petitioner for
delaying selection process. He further submits that after a period of more than eight
years, once the issue of pay fixation came up before the respondents and also after
the order of this Court, they raised suspicion on her appointment and as such, the
impugned orders are not tenable in the eyes of law.
6. Mr. Pallav further submits that the plea of the respondents that criteria
fixed for appointment under Right to Education Act, 2009 was not complied with as
the petitioner did not possess the Teachers Eligibility Test TET qualification at the
time of appointment, is not attracted in the instant case on the ground that Teachers
Eligibility Test (TET) is an essential qualification for recruitment of primary schools
teachers, not for Government Aided Minority Education Institutions as held by the
Hon'ble Apex Court in case of Pramati Educational & Cultural Trust & Ors. Vs.
Union of India1. Learned counsel draws the attention of the Court towards letter
dated 28.08.2015, wherein National Council for Teacher Education has clarified that
teachers appointed in minority institutions are not required to pass the Teachers
Eligibility Test (TET) and as the Dinabandhu Middle School is a Government-aided
Minority School and petitioner was appointed on 20.03.2012, there is no
requirement to pass the Teachers Eligibility Test (TET) at the time of appointment
and as such, impugned orders are not tenable in the eyes of law. Learned counsel
prays that impugned orders may be quashed and set aside and a direction may be
given to the respondents to release the current salary as well as arrears of salary.
7. Per contra, counter-affidavit have been filed.
8. Mr. Manish Mishra, learned counsel for the respondent-State
vehemently opposes the contention of the learned counsel for the petitioner and
submits that there is no illegality or infirmity in the impugned orders. The decision of
the Screening Committee dated 29.11.2019 is in accordance with law. The
petitioner was not in possession of the requisite qualification on the date of her
initial appointment and as such, her application is void ab initio. The appointment of
the petitioner cannot be treated as a regular employee without final approval of
(2014) 8 SCC 1
School Education and Literacy Department. He further submits that the School
Management Committee did not assign any reason to initiate recruitment procedure
after three years from the date of publication of vacancy despite the fact that only
few person have applied for the said post against the vacancies advertised by the
School. Mr. Mishra further argues that the then District Superintendent of
Education, Deoghar kept the matter of approval of the appointment pending for a
long period favouring the petitioner to pass TET examination. The School
Management Committee accepted the joining of the petitioner without verification of
the educational certificate and approval by the District Superintendent of Education,
Deoghar, which shows that the said Committee was in favour of the petitioner and
as such, violated the guideline of the State in respect to appointment of teacher.
Learned counsel places heavy reliance on a judgment of Hon'ble Division Bench
passed in case of Kanchan Tirky Vs. State of Jharkhand in LPA No. 58/2018.
9. Nobody appears on behalf of the respondent Nos. 6 & 7. However, in
the counter-affidavit, filed by them, they have supported the case of the petitioner in
which it is stated that the said Advertisement was floated by the School against the
sanctioned post and petitioner was appointment following the due procedures of
law. It is further stated that the petitioner has been working in the said School since
2012 and has been discharging her duties, but till date she has not been paid any
salary as the said School being a minority schools depends on the grant-in-aid,
given by the State.
10. Be that as it may, having gone through the rival submissions of the
parties and on perusal of the records, it appears that the petitioner was appointed
in the year, 2012 after following the procedures of law and has been discharging
her duties since 22nd March, 2012. In the year, 2019, the appointment of the
petitioner was questioned that too after order of this Court passed in earlier writ
petition filed by the petitioner being W.P.(S) No. 5140 of 2016 and also despite the
fact that after the appointment of the petitioner, the Principal of the said School
forwarded letter dated 24.03.2012 to District Superintendent of Education, whereby
it was appraised to him that the appointment of the petitioner has been done on the
basis of due process of law and in consonance with Primary School Teacher
Appointment Rules, 2012, which was never objected by the District Superintendent
of Education on an initial stage and as such, the petitioner cannot be held liable for
the irresponsibility committed by the respondents. The argument of the learned
counsel for the respondent-State that the selection process is illegal as it was
delayed by three years, is not acceptable to this Court as there is no such rule
which provides that the selection process has to be completed within stipulated
period of time. The delay in appointment process cannot vitiate the right of the
petitioner. The understanding of the respondents that the petitioner did not
possess the Teachers Eligibility Test TET qualification at the time of appointment, is
not attracted in the instant case as Teachers Eligibility Test (TET) is an essential
qualification for recruitment of primary schools teachers, not for Government Aided
Minority Education Institutions. Further, from perusal of letter dated 28.08.2015, it
appears that National Council for Teacher Education has clarified that teachers
appointed in minority institutions are not required to pass the Teachers Eligibility
Test (TET). Similar issue fell for consideration before the Hon'ble Apex Court in
case of Pramati Educational & Cultural Trust & Ors. Vs. Union of India (supra),
wherein it has been held that the provisions of the Right of Children to Free and
Compulsory Education Act, 2009 are inapplicable to the aided and unaided minority
school, which are covered under Article 30 (1) of the Constitution of India. As the
Dinabandhu Middle School is a Government-aided Minority School and petitioner
was appointed on 20.03.2012, there is no requirement to pass the Teachers
Eligibility Test (TET) at the time of appointment. The judgment relied upon the
learned counsel for the respondents is of no help to him.
11. As a cumulative effect of the aforesaid rules, guidelines and judicial
pronouncement, the impugned orders dated 29th November, 2019 (Annexure-15),
07th January, 2020 (Annexure-16) and 8th February, 2020 (Annexure-17) are not
sustainable in the eyes of law and are hereby quashed and set aside. The
respondent No.5 is directed to pay the entire arrears of salary as well as current
salary to the petitioner after pay fixation, within a period of six weeks, from the date
of receipt of a copy of this order.
12. With the aforesaid observations and directions, writ petition stands
allowed.
13. Pending I.A, if any, also stands disposed of.
(Dr. S.N. Pathak, J.)
punit/
