Damodar Prasad Sah vs The State Of Jharkhand
2022 Latest Caselaw 3420 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Letters Patent Appellate Jurisdiction)

                               LPA No. 196 of 2013

1. Damodar Prasad Sah, son of Sri Dhaneshwar Sah, resident of Rasikpur,
PO+PS+District: Dumka. (Presently posted as Assistant Teacher Middle
School Barapalasi, Anchal Jama, PO+PS+District: Dumka).
2. Rekha Khan, wife of Pavitra Kumar Mandal, resident of village Babu Para,
PO+PS +District: Dumka (Presently posted as Assistant Teacher in Kendriya
Kanya Middle School, Dumka, PO+PS+District: Dumka).
                                                     ....     ... Appellants
                                 Versus
1. The State of Jharkhand.
2. Principal Secretary, Human Resource Development Department, Govt. of
Jharkhand, Nepal House, PO+ PS Doranda, District Ranchi.
3. Director, Primary Education, Human Resource Development Department,
Govt. of Jharkhand, Nepal House, PO + PS Doranda, District Ranchi
4. Regional Deputy Director of Education, Santhalpargana Division, Dumka,
PO+PS+District: Dumka
5. Deputy Commissioner cum Chairman, District Education Establishment
Committee, Dumka, PO+PS+District: Dumka
6. District Superintendent of Education, Dumka, PO+PS+District: Dumka
7. Ashok Kumar Mahto, son of late Joy Halu Mahto, resident of village
Banarnnacha, PO Kairabani PS Kundahid District Jamtara
8. Kanchan Gopal Mandal, son of late Prabhakar Mandal, resident of village
Belboria, PO Jamtara, PS Fatehpur, District Jamtara.
9. Md. Washi Alam, son of Sri Nasir Mian resident of village and PO
Fatehpur PS Kundahid District Jamtara.             ....    ... Respondents

                                     -------
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
             HON'BLE MR. JUSTICE RATNAKER BHENGRA
                               ------
   For the Appellant      : Mr. Manoj Tandon, Advocate;
                             Ms. Neha Bhardwaj,Advocate;
                             Ms. Sneha Kumari, Advocate;
                             Ms. Akansha Priya, Advocate
   For the State           : Mr. Piyush Chitresh, AC to AG
                              ------
                       ORDER

29th August 2022 Per, Shree Chandrashekhar,J.

Damodar Prasad Sah and Rekha Khan are aggrieved of the order dated 25th April 2013 passed in WP(S) No. 5404 of 2001.

2. Seven persons including these two appellants approached the writ Court against the order dated 26th September 2000. By this order, B.Sc. Trained Scale granted to them was withdrawn and an order for recovery of excess payment made to them was passed by the District Superintendent of 2 LPA 196 of 2013

Education, Dumka.

3. By the impugned order dated 25th April 2013 the writ Court held that B.Sc. Trained Scale was rightly granted to Ashok Kumar Mahto, Kanchan Gopal Mandal and Md. Washi Alam who had joined the present appellants as petitioners before the writ Court.

4. The order passed by the writ Court in favour of the aforesaid three persons was challenged by the State of Jharkhand in LPA No. 142 of 2014.

5. A part of the said order dated 25th April 2013 has been challenged by the appellants in this Letters Patent Appeal.

6. We are informed that LPA No. 195 of 2013 which was filed by other two persons Arjun Pandit and Vikash Chandra Mandal has been dismissed in default.

7. Our attention has been drawn to the order dated 18th April 2013 passed in WP(S) No. 5134 of 2001 which was preferred by Madhab Chandra Mahto and others against the aforesaid order dated 26th September 2000 - the writ petition was allowed.

8. The order dated 18th April 2013 passed by the writ Court in the case of Madhab Chandra Mahto and others was also challenged by the State of Jharkhand by way of LPA No. 226 of 2013. The said Letters Patent Appeal was dismissed by a coordinate Bench of this Court observing that by making allegations of illegality in grant of B.Sc. Trained Scale to the said Madhab Chandra Mahto and 15 others, such as, violations of reservation and roster point were without any factual basis. It was held that Madhab Chandra Mahto and others were rightly granted B.Sc. Trained Scale.

9. On the basis of the order passed in LPA No. 226 of 2013, the Letters Patent Appeal preferred by the State of Jharkhand against the order passed in favour of Ashok Kumar Mahto and others vide LPA No. 142 of 2014 was also dismissed.

10. At this stage, we may indicate that the order passed by the writ Court against Damodar Prasad Sah and Rekha Khan in the same proceeding could not have been challenged by the State of Jharkhand, although they were made respondents in the memorandum of Letters Patent Appeal. Therefore, it shall remain open to the appellants to challenge the writ Court's order qua them.

3 LPA 196 of 2013

11. The first challenge laid by the appellants to a part of the order dated 25th April 2013 passed in WP(S) No. 5404 of 2001 which relates to them is based on the order passed by the learned Single Judge in WP(S) No. 5134 of 2001 which was affirmed by a coordinate Bench of this Court in LPA No. 226 of 2013 - challenge to the writ Court's order by the State of Jharkhand failed. It is contended that the writ Court committed a serious error in law and dismissed WP(S) No.5404 of 2001 without assigning a reason how the claim of the appellants was different from the said Madhab Chandra Mahto and others.

12. In the writ petition filed by the appellants and 5 others, the learned writ Court has taken note of the order passed in WP(S) No. 5134 of 2001 to hold as under:

"Though the B.Sc. Trained Scale has been cancelled by common impugned order, but learned counsel for the respondents has not been able to refute the contention of the counsel for the petitioners that practitioner nos. 1,2 and 7 fall amongst the list of candidates at Agenda No. 19 of the resolution dated 18th April, 1988 (Annexure-6) of the District Education Establishment Committee, Dumka whereunder the persons named in the panel were recommended for appointment in the B.Sc. Trained Scale. In similar circumstances, the same impugned order dated 26th September, 2000 passed in respect of such B.Sc. trained teachers who were in the panel of teachers considered at the same Agenda No. 19 of the resolution dated 18th April, 1988, has been quashed by this Court in the judgment rendered on 18 th April, 2013 in W.P.(S) No. 5134 of 2001. These three petitioners i.e. petitioner nos. 1,2 and 7, therefore, fall in the same category of persons as those covered under the judgment rendered to (Supra) and are therefore entitled to similar treatment.

In such circumstances, the impugned order dated 26th September, 2000, so far as it concerns the petitioner nos. 1,2 and 7, cannot be sustained in law and on facts as it tends to take away a vested right accrued in their favour on the basis of their appointments in the B.Sc. Trained Category by the decision of the District Education Establishment Committee dated 18 th April, 1988 and whereunder they continued to draw B.Sc. Trained Scale pursuant to the subsequent decision of the District Education Establishment Committee dated 30th October, 1988 and 15th January, 1996. Accordingly, the impugned order is quashed so far as it concerns to them."

13. However, the writ Court was of the opinion that Damodar Prasad Sah and the remaining other three were appointed on their representation and, therefore, they have no legal right to seek B.Sc. Trained Scale.

14. The decision in this regard by the writ Court is as follows:

"In the circumstances of the present case, it cannot be said that rest of four petitioners did not have any role to play in grant of such B.Sc. Trained Scale, as it was on their representations that the 4 LPA 196 of 2013

District Education Establishment Committee resolved to grant them the said scale, which they were not legally entitled to. Therefore, the impugned order cannot be found fault with and no exception can be made in their cases so far as recovery of excess amount paid to them is concerned. However, the respondents would consider imposing easy installment for recovery of excess amount from the salary of these petitioners over a period of time so that it may not cause undue hardship to them.

The writ petition is partly allowed so far as it concerns the petitioner nos. 1, 2 and 7, namely, Ashok Kumar Mahto, Kanchan Gopal Mandal and Md. Washi Alam and partly dismissed so far as it concerns the rest of the petitioner nos. 3 to 6, namely, Damodar Prasad Sah, Arjun Pandit, Smt. Rekha Khan, and Vikash Chandra Mandal. However, no order as to costs."

15. Mr. Manoj Tandon, the learned counsel for the appellants would submit that before their appointments the appellants had requisite qualifications and were rightly granted B.Sc. Trained Scale.

16. Damodar Prasad Sah and Rekha Khan acquired degree of graduation before their appointment on the post of Assistant Teacher in Matric Trained Scale. Rekha Khan stated that she acquired the degree of graduation on 14th August 1984. Similarly Damodar Prasad Sah claimed that he became a Graduate on 22nd April 1988. Damodar Prasad Sah was appointed on the post of Assistant Teacher on 23rd May 1988 and Rekha Khan was appointed on the post of Assistant Teacher on 24th May 1988.

17. There is no dispute on facts except that the name of Rekha Khan was not considered under Agenda No. 19 for grant of B.Sc. Trained Scale to the teachers who were initially appointed in Matric Trained Scale. There is also no dispute that the writ petitioners in WP(S) No. 5134 of 2001 and WP(S) No.5404 of 2001 were all initially appointed in Matric Trained Scale; they made applications for appointment pursuant to the advertisement issued on 18th December 1986 which was later on modified through the advertisement dated 24th January 1987. These advertisements were issued for appointment against the posts of Matric Trained, Intermediate Trained and B.Sc. Trained teachers.

18. Under Agenda No. 19 which was considered by the District Education Establishment Committee, the name of Damodar Prasad Sah figures at serial No. 9. The writ Court has committed a factual error on this count because other three persons who were at serial Nos. 32, 34 and 38 are found validly appointed for this reason alone, that they were considered for grant of B.Sc. Trained Scale under Agenda No.19.

5 LPA 196 of 2013

19. Mr. Manoj Tandon, the learned counsel for the appellants submit that Rekha Khan was granted B.Sc. Trained Scale pursuant to Agenda No.1 under which a decision was taken to appoint I.Sc. and B.Sc. Trained candidates from the panel which was duly approved by the District Education Establishment Committee.

20. Mr. Piyush Chitresh, the learned AC to the learned Advocate General, however, disputes this submission on the ground that under Agenda No. 19 specific case of each of the individual teachers was considered in the list of which the name of Rekha Khan is not mentioned.

21. Having examined the materials on record, we are of the opinion that the appellants are similarly situated with Ashok Kumar Mahto, Kanchan Gopal Mandal and Md. Washi Alam who were also initially appointed in Matric Trained Scale. It is also difficult to distinguish the case of the appellants from Madhab Chandra Mahto and others. Except Rekha Khan, others were considered for appointment in B.Sc. Trained Scale by the District Education Establishment Committee under Agenda No. 19 dated 18 th April 1988. Insofar as the grounds taken by the State of Jharkhand as regards violation of rules of reservation, the roster clearance etc. are concerned, such objections were overruled by a coordinate Bench of this Court while dealing with LPA No. 226 of 2013.

22. There is no dispute that Rekha Khan made application for appointment pursuant to the advertisement dated 18th December 1986; she possessed requisite qualification at the time of application itself and; she was appointed in Matric Trained Scale.

23. In these facts, we think that no distinction can be made between Damodar Prasad Sah and Rekha Khan and while so, she is also entitled for B.Sc. Trained Scale.

24. We are fortified in our conclusion also on the basis of the decision dated 29th April 2015 passed by a co-ordinate Bench of this Court in LPA No. 226 of 2013 with LPA No. 142 of 2014.

25. For the aforesaid reasons, we find serious infirmity in the order dated 25th April 2013 passed in WP(S) No. 5404 of 2001 by which the appellants were denied benefits of B.Sc. Trained Scale.

26. Needless to say, service linked benefits shall follow to the appellants.

6 LPA 196 of 2013

27. LPA No. 196 of 2013 is allowed, in the aforesaid terms.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 29th August, 2022 SB/Nibha-NAFR