Basant Kumar Toppo vs The State Of Jharkhand
2022 Latest Caselaw 4969 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     WP(S) No. 7311 of 2017
          Basant Kumar Toppo...                                            ......Petitioner
                                                Versus
             1. The State of Jharkhand
             2. The Principal Secretary, Department of School Education and Literacy, Govt. of
                Jharkhand, Dhurwa, Ranchi.
             3. The State Project Director, Jharkhand Education Project Council, Doranda,
                Jharkhand.
             4. The Deputy Commissioner, Ramgarh.
             5. The District Superintendent of Education, Ramgarh.      .......Respondents.
                                                ------

          CORAM         :     HON'BLE MR. JUSTICE ANANDA SEN.
                                                ------
          For the Petitioner(s):          Mr. Anil Kr. Sinha, Advocate.
          For the respondent(s):          Mr. Gaurang Jajodia, AC to GP-II.
                                                -----

14/08.12.2022:        In this writ petition, the petitioner has prayed for quashing the order

dated 31.12.2016 issued by the District Superintendent of Education, Ramgarh as contained in Letter No. 3055, whereby on the recommendation of the District Education Establishment Committee the candidature of the petitioner for the post of Graduate Trained Teacher has been cancelled.

2. The fact of this case lies in a narrow compass.

3. The petitioner was appointed as para teacher and was asked to join in Upgraded Middle School, Bajha, Katkamsandi-II vide letter dated 4.12.2017 issued by the Village Education Committee, which was the authority to appoint the petitioner. On 27.7.2010 the petitioner applied for leave from 1.8.2010 as he wanted to enhance his educational qualification by acquiring B.Ed. Degree. The Village Education Committee vide resolution No. 4 dated 11.1.2011 accorded permission to the petitioner to take leave for the purpose of enhancing his educational qualification. It was also decided that the petitioner will not be paid any salary during the said period. The petitioner completed his B.Ed. Degree and returned. With the permission of the Village Education Committee, he joined the said school and started working as para teacher.

4. An advertisement No. 3/2015 dated 22.7.2015 was published seeking applications for appointment of teacher for Class-VI to VIII in the district of Ramgarh. The petitioner applied in pursuance to the said advertisement.

5. It is an admitted case that the petitioner was selected for counseling. The petitioner deposited his certificates. Be it noted that there were two categories from where the selection was made (I) Para Category and (ii) non-Para Category. Since the petitioner was a para teacher, he applied and was selected for the post, reserved for para teacher category.

6. On 26.2.2016, the petitioner was served a show cause wherein he was asked to explain with evidence that as to how he had enhanced his educational qualification and obtained B.Ed. Degree when there was prohibition to the effect that no leave would be granted to any para teacher to enhance his educational qualification. The petitioner submitted his reply stating the fact that he was granted leave by the Village Education Committee, but ultimately by the order impugned dated 31.12.2016, the candidature of the petitioner was rejected. Thus, the impugned order is under challenge.

7. Counsel for the petitioner submits that the petitioner took leave to enhance his educational qualification and then only he got admitted for B.Ed. Course and enhanced his educational qualification, thus it cannot be said that the petitioner unauthorisedly remained absent. Further it is his case that during the entire period, admittedly the petitioner was not paid any emoluments. It is his further case that till now, the petitioner is working as para teacher and no action has been taken against him, which clearly suggests that he has committed no illegality.

8. Counsel for the State heavily relies upon the letter dated 7.1.2015, issued by the State Project Director in respect of their contention, wherein it has been informed that a decision was taken in 39th Meeting dated 16.10.2014 by the State executives and it has been decided that the para teacher will only get 16 days casual leave and this order was made applicable from 1.1.2015. He also refers the Jharkhand Education Project Council, Ranchi Leave to KGBV Staff, wherein it has been mandated that only 10 days casual leave in one calendar year is admissible and half pay leave shall accrue to an employee at the rate of 20 days in respect of each completed year of service and there would be maternity leave. He submits that though the leaves are permissible and there is no mentioning of an education leave, thus, the petitioner could not obtain an education leave for enhancing his educational qualification while he was working as para teacher. It will be deemed that his status of para teacher is under the cloud, thus he cannot be considered for appointment, pursuant to regular separate advertisement for the post of Graduate Trained Teacher.

9. An advertisement No. 3/2015 dated 22.7.2015 was published to appoint Graduate Trained Teacher in the District of Ramgarh. There were two categories from where the post were to be filled up. The categories were "Para Category" and "Non-para Category". The para teacher who intends to get appointment as Graduate Trained Teacher in the State of Jharkhand would be

given an option as there were some reservation under Para Category. The petitioner applied in para category as admittedly, he was working as a para teacher.

10. The fact that the petitioner was selected is also not disputed. The dispute cropped up as the respondents did not consider him to be a para teacher on the ground that he has enhanced his educational qualification while he was serving as para teacher after taking leave, which is not permissible. Be it noted that till date the petitioner is working as para teacher. Thus, the respondents argument that he will not be deemed to be a para teacher is not correct and they cannot blow cold and hot at the same time when as on date the petitioner is working as para teacher. It is not proper for the State to take stand that the petitioner is not deemed to be a para teacher, as his candidature should be considered in the category of para teacher, which in fact, was not done. The ground for rejecting the candidature is that the petitioner has enhanced his educational qualification, which he could not have as no study leave should be granted to him.

11. In this case, after going through the record, I find that the petitioner applied before the Village Education Committee for granting him leave to enhance his educational qualification. It cannot be said that the Village Education Committee was not authorised to grant leave to the petitioner, as the appointment of the petitioner is by virtue of the letter issued by the Village Education Committee, which is also competent to grant leave to the petitioner. Admittedly, the petitioner was not paid any salary for the period when he was on leave for enhancing his educational qualification.

12. The letter dated 7.1.2015 upon which the respondents are relying upon only mentions that in the meeting dated 16.10.2014 it was decided that female para teacher will be given maternity leave for three months and the para teacher will get 16 days casual leave per year. This letter is not applicable in this case and also does not help the respondents. This letter was effective from 1.1.2015 i.e. the date after the petitioner had already enhanced his educational qualification. Further the aforesaid letter does not prohibit from granting educational leave. The respondent also relies upon the agreement, which is Annexure-A to the counter affidavit. The respondents have only filed standard format of the agreement. After going through the said standard format of the agreement, I find that it has been mentioned that 10 days causal leave will be granted to a para teacher. But, when a para teacher remains absent after taking

due permission and has exhausted all his leave, then during that period, he will not be paid any emoluments/honorarium/salary. Clause-4 of the said agreement, reads as under:-

4. f'k{kkLo;alsoh dk ,d o"kZ esa 10 fnu rd vf/kd`r vuqifLFkfr (vodk'k) ds miHkksx dk vf/kdkj gksxkA ;fn og vuqefriwoZd vuqifLFkr jgrk gS vkSj mldk dksbZ vodk'k (vf/kd`r vuqifLFkfr) 'ks"k ugha jg x;k gS rks blds fy, mldk lesfdr Hkqxrs; jkf'k esa ls lekuqikfrd dVkSrh dh tk;sxhA

From the aforesaid condition of the contract, it is quite clear that there is no bar in granting leave for education purpose even beyond ten days, the only restriction is that leaves beyond ten days will be an unpaid leave.

13. In this case, admittedly, the leave was granted to the petitioner by the Village Education Committee and the said leave was unpaid. Thus, it cannot be said that the petitioner has committed illegality by enhancing his educational qualification when it has been done after taking permission by the Village Education Committee and during that period, no salary/emoluments/honorarium was paid to the petitioner.

14. This Court in a similar matter being WPS No. 275/2017 has answered the issue in respect of enhancement of educational qualification (the said judgment was upheld by the Hon'ble Division Bench in LPA NO. 385 of 2019) though in that case after the appointment was made, the petitioner was removed from service but the only divergence in this case is that the petitioner was not appointed and his successful candidature was also cancelled before his appointment letter was issued.

15. Considering what has been held above, I hold that there is no illegality committed by the petitioner in enhancing his education qualification and further since till date the petitioner is working as para teacher. This amounts that the respondents accepted him as a para teacher. Thus the case of the petitioner needs to be considered in the category of "Para Teacher" for his appointment, pursuant to Advertisement No. 3/2015 dated 22.7.2015.

16. In that view, the decision taken by the Establishment Committee as well as the impugned letter cancelling the candidature of the petitioner is bad and needs to be quashed as the same are illegal and without any basis.

17. Accordingly, this petition stands allowed.

18. The respondents are directed to re-consider the case of the petitioner and issue appointment letter to the post of Graduate Trained Teacher, if he is otherwise qualified.

Anu/-CP2. (ANANDA SEN, J.)