Jharkhand High Court
Md. Shahbaz Ahmad Son Of Md Iqubal vs The State Of Jharkhand on 21 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5607 of 2017
----
Md. Shahbaz Ahmad son of Md Iqubal, resident of Village Baskikitta,
Block Meharma, PO Marpa, PS Balbadda, Dist. Deoghar.
... Petitioner
-versus-
1. The State of Jharkhand
2. The Secretary, Department of Higher, Technical Education and
Skill Development, State of Jharkhand having Office at Project
Bhawan, Dhurwa, Ranchi.
3. Director, Department of Higher, Technical Education and Skill
Development, State of Jharkhand, Office at Project Bhawan, Dhurwa,
Ranchi.
4. The Deputy Collector, Deoghar.
5. The District Superintendent of Education, Deoghar.
... Respondents
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Petitioners : Mr. Gaurav Abhishekh, Advocate
For the Respondents : Ms. Shilpi, AC to SC (Mines) II
----
8/ 21.11.2022 Heard learned counsel for the petitioner and learned counsel for
the respondents.
2. Petitioner, in this writ petition, has challenged the memo No. 1437
dated 19.08.2017, whereby he was terminated from the post of Teacher
(Language) without conducting a detailed departmental inquiry, intimating
therein that the petitioner had applied for post under the wrong category and
has been appointed without the requisite qualification for the post of Assistant
Teacher (Language). Aforesaid is the sole reason for termination of the
petitioner, whereas, as per the petitioner, he fulfills all the terms of the
advertisement and rules and complies with the eligibility criteria. Petitioner has
further prayed to reinstate him with back wages in his designated post of
Assistant Teacher.
3. The case of the petitioner lies in a narrow compass. An advertisement
was floated by the respondents for appointment to the post of Trained
Graduate Teachers in Government Middle Schools in the entire State of
Jharkhand against 3972 number of vacancies in different subjects, wherein it
was clearly mentioned that those candidates who have been declared
successful in Teachers Eligibility Test for Class 6-8 shall be appointed in Urdu
Middle School as trained Graduate Teacher (Language), who have opted for
Urdu and English as Language 1. Pursuant thereto, the petitioner being
eligible, applied for the post of Trained Graduate Teacher (Urdu) under the
language section as the petitioner has also qualified the TET (Teachers
Eligibility Test) of Urdu Assistant Teacher, conducted by the Jharkhand
Academic Council. Thereafter, the petitioner was called for counselling on
10.12.2015 for further scrutiny of his application, wherein he submitted all the
requisite documents which was duly received. Accordingly, the petitioner was
declared successful on the basis of his qualification and vide order as
contained in Memo No.127 dated 11.01.2016, he was issued the appointment
letter as a Teacher (language). The petitioner was allotted Middle School,
Jasidih, Subdivision Jasidih, Deoghar as language Teacher vide memo No.
1870 dated 09.03.2016. Pursuant thereto, the petitioner joined on 13.01.2016
and submitted his joining in the office of District Superintendent of Education,
Deoghar. It is specific case of the petitioner that though he was appointed as
Teacher in the subject of language, but was posted as Urdu Teacher as the
petitioner was holding the eligibility of Urdu Teacher as provided under the
Rules and the Advertisement. A show cause notice was issued to the
petitioner vide letter No.840 dated 19.05.2017, asking an explanation as to
why petitioner should not be terminated as petitioner was appointed for the
post of Trained Graduate Teacher for General Language Teacher whereas he
holds eligibility for appointment to the post of Assistant Urdu Teacher only .
The petitioner replied to the said show cause vide letter dated 08.06.2017 by
which he clearly stated that he was appointed as Trained Graduate Teacher
for Language pursuant to the advertisement No.02/2015, after strict scrutiny by
the officials during the first counseling on 20.09.2015 and has been working on
the post since his date of joining i.e. 13.01.2016. However, a second show
cause was issued to the petitioner vide Letter No. 1268 dated 24.07.2017,
asking him to show cause as to how he has mentioned Advertisement
No.02/2015 in the explanation whereas appointment was made pursuant to
Advertisement No.03/2015. Accordingly, the petitioner replied to the second
show cause vide his letter dated 28.07.2017 in which he stated that
advertisement No.02/15 instead of Advertisement No.03/15 was inadvertently
typed. He was actually appointed against the Advertisement No.03,/15, which
also find strength from appointment letter issued to him. Surprisingly, the
petitioner was terminated from services vide Memo No. 1437 dated
19.08.2017 from the post of teacher on the ground that he does not possess
the required qualification for the post of Assistant Teacher Language and as
because he had given false information while applying for the post, therefore,
his appointment has been declared illegal, which is under challenge.
4. Mr. Gaurav Abhishek, learned counsel for the petitioner submits
that the actions of the respondents in terminating the services of the petitioner
on the basis of appointment as language teacher is illegal and arbitrary. He
further submits that even if an employee has been appointed in a wrong
manner, a full-fledged enquiry is required to be conducted and an ex-parte
enquiry report cannot be referred while issuing the show cause notice and
same cannot be the basis for passing the order of termination. No
departmental inquiry was conducted by the respondents, which shows the
biasness as well negligence on the part of the respondents, as such, there is
complete violation of principles of natural justice. The petitioner applied for the
post of teacher (language) as per the advertisement as well as the Rules
under which the advertisement was issued, which provided the eligibility for
appointment as TET qualified candidate with Urdu and English language for
appointment to the post of teacher language and as the petitioner has a
qualification in Urdu and has cleared the TET Examination, rightly he was
appointed to the said post. He further submitted that the petitioner has
submitted all the documents required during the stage of counselling before
the respondent and after strict scrutiny of the same, he was appointed to the
post of language teacher by the respondents, as such, the petitioner has never
misrepresented the fact regarding his qualifications. He further submits that
the impugned order is liable to be quashed and set aside and the petitioner
should be reinstated in services as an Assistant Teacher as the petitioner
possesses all the requisite qualification for appointment to the said post and
also he has worked on the said post for one year and seven months from the
date of his appointment. He further argues that it is settled principles of law
that appointees who have been appointed in furtherance to a selection
process which later on is found to have certain errors, then in that eventuality,
appointees should be adjusted and not removed/terminated from services. He
further argues that the petitioner has passed his TET exam in the year 2013
with Language-I, paper being Urdu and English, and both the said subject falls
under the category of language. There is no discrepancy in the educational as
well as other certificates furnished by the petitioner before the respondents. To
buttress his argument, learned counsel for the petitioner places reliance on the
following judgment:-
I. In the case of Vikash Pratap Singh Vs. State of
Chhatissgarh, reported in (2013) 14 SCC 494.
II. Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of
Medical Science, Patna & Ors., reported in (2015) 15 SCC 151.
III. Ashish Kumar Vs. State of Uttar Pradesh & Ors., reported in
(2018) 3 SCC 55.
5. On the other hand, counter-affidavit has been filed.
6. Ms. Shilpi, learned counsel for the respondents vehemently
opposes the contention of the learned counsel for the petitioner and submits
that the petitioner applied against the Advertisement No.03/15 for the post of
Trained Graduate Assistant Teacher (Language) for class-VI-VIII as non Para
Teacher under Most Backward Class (MBC) against the vacancy as
mentioned in the said Advertisement. From perusal of the application form and
TET certificate of the petitioner, it appears that petitioner is not having the
requisite qualification for appointment. The petitioner has obtained all the
degree from secondary level to graduate level from Madarsa Board under the
Jharkhand Academic Council, Ranchi and the petitioner has qualified in the
TET examination, 2012 for Class VI to VIII as Urdu Assistant Teacher, but the
petitioner applied for Trained Graduate Assistant Teacher (Language) and as
such, his subject does not come under the purview of language. He further
submits that due to bona fide mistake or oversight, the petitioner was selected
against the language subject and accordingly, appointed vide letter dated
11.01.2016. Subsequently, during review, it was noticed that the petitioner was
appointed contrary to the applicable rules. Thus, the respondents took
cognizance of the matter and issued show cause to the petitioner, however,
petitioner failed to submit satisfactory reply, thus, rightly he was terminated
from services. The principles of natural justice has been followed and an
opportunity to defend was provided to the petitioner by issuance of show
cause. He further submits that the appointment of the petitioner was on
provisional basis and he was on probation for two years and during the
probation period, it was noticed that he had passed TET for Urdu Teacher,
thus, he was not entitled to file an application for appointment for language
teacher. The petitioner has also filed a self declaration prior to his joining that
in case of any discrepancy in the educational and other certificates his service
shall be terminated and he shall be liable for the consequences resulting
therefrom. Learned counsel for the respondents further argues that pursuant to
the Rule, the petitioner has not passed TET in Language rather he passed the
same for Urdu Teacher and also he was not in possession of the requisite
qualification for language teacher in terms of the advertisement and as such,
rightly he was removed/terminated from services.
7. Having gone through the rival submissions of the parties and on
perusal of records this Court is of the considered view that the petitioner had
passed the TET exam for Urdu Assistant Teacher for Class 6 to 8, as such, he
was not having the requisite qualification for appointment to the said post of
language teacher as per the terms and conditions of the advertisement. The
petitioner applied for Trained Graduate Assistant Teacher (Language) and as
petitioner did not fulfill the requisite qualification for the same, rightly the
services of the petitioner was removed/terminated by the respondents. The
petitioner was appointed inadvertently, contrary to the applicable rules and
during the probation period, it was found that he had passed TET for Urdu
Assistant Teacher and not holding the requisite qualification and as such, the
respondents have power to rectify their mistake. The petitioner has also filed a
self-declaration prior to his joining that in case of any discrepancy in the
educational and other certificates, his service shall be terminated and he shall
be liable for the consequences resulting therefrom. The petitioner was also
served with a show cause notice and as such, principles of natural justice has
been followed. Similar issue fell for consideration before a co-ordinate Bench
of this Court in W.P.(S) No. 4631 of 2015 and other analogous cases
wherein vide order dated 18.03.2017, it has been held thus:-
19. To conclude, appointment on the post of Language
teacher in the Upper Primary Schools requires a subject-
specific qualification similar to the qualifications for
appointment as Mathematics/Science teacher or Social
Science teacher. By subject-specific qualification, I mean
qualification in the "subject". Language teacher is a
distinct class of teachers, different from a Science or a
Social Science teacher and for appointment on the post
of Language teacher a qualification in Graduation with
MIL or any other language as a compulsory subject is not
a sufficient qualification. The RTE Act, 2009 and Rule 9 of
the Appointment Rules, 2012 when examined in the
context of the object for which three distinct category of
teachers viz. Mathematics/Science, Social Sciences and
Languages must be appointed in Upper Primary Schools,
it becomes clear that the educational qualifications for
appointment on the post of Mathematics/Science or
Social Science teacher are not sufficient for appointment
as a Language teacher; the educational qualification
being subject-centric. If contention of the petitioners is
accepted there would remain only two category of
teachers; Mathematics/Science and Social Science,
which, effectively, would obliterate the object behind the
RTE Act, 2009 for compulsory appointment of language
teachers. An interpretation which reduces statute to
futility has be avoided even though there may be some
inexactitude in the language used {Bhakara beas
Management Board Vs. Krishan Kumar Vij & Anr. (2010) 8
SCC 701].
20. As a sequel to the fore-going discussions what
follows is, that the petitioners are not eligible for
appointment on the post of Language teacher.
8. Further, the said judgment of Co-ordinate Bench was affirmed by
the Hon'ble Division Bench vide order dated 27.06.2019 passed in LPA No.
209 of 2017 and other analogous cases, which reads thus:-
16. Having heard learned counsels for the parties and
upon going through the record, we are in complete
agreement with the findings given by the Hon'ble Single
Judge, that a candidate, having MIL as a compulsory
subject in Graduation level, cannot be appointed as a
teacher in Languages. It is not denied that even the
students doing Graduation in a particular Language, i.e.,
in Hindi, or in English, is also required to take MIL as one
compulsory subject in the Graduation level, apart from
several papers in the concerned language. Curriculum for
Hindi, or English in Graduation level, shall have a
different course contents compared to MIL as a
compulsory paper. Thus, if a teacher, is appointed in the
subject of Languages, only having MIL as a compulsory
paper, the children would be deprived of quality
education in the concerned Language, inasmuch as, MIL
as a compulsory subject, is included in the course of
Graduation in all subjects, only to ensure that the
students are going to have a minimum level of working
language and proficiency in that language, but once a
teacher is to be appointed for a particular subject, as for
example, if he is to be appointed as a Science teacher, he
must have the Graduation in Science, if he is being
appointed as a teacher in Social Science, he must be a
Graduate in Social Science, and if he is appointed as a
Language teacher, he must be a Graduate exclusively in
that Language. Any deviation in this practice shall result
in deprivation of the children of proper education in
Language, and shall frustrate the very aim and object of
RCFCE Act, enacted by the Parliament of India.
17. The submission of learned counsel for the appellant
in L.P.A. No. 219 of 2017, that this appellant has done
M.A. in Hindi and she cannot be deprived of her
appointment as an Assistant Teacher in Language,
cannot be acceded to. In Parvaiz Ahmad Parry's case
(supra), relied upon by the learned counsel for the
appellant, the said applicant had applied for the post of
Range officer Grade-I, (Forest), for which, required
qualification was B.Sc. in Forestry or its equivalent from
any University, recognized by the Indian Council of
Agricultural Research (ICAR). The appellant was having
the qualification of B.Sc., with Forestry as one of the
major subjects, and M.Sc. (Forestry), and in that
backdrop, it was held by the Hon'ble Supreme Court that
the appellant was fulfilling the eligibility criteria for the
post of Range officer Grade-I, (Forest). Whereas in the
present case, the appellant in L.P.A. No. 219 of 2017, was
not having the degree of B.A. (Hons.) in Hindi, she was
having the qualification of B.A. with Labour and Social
Welfare, though, she was having MIL Hindi as one of the
subjects. There is nothing on the record to show as to
how she was allowed to do M.A. in Hindi by Dakshin
Bharat Hindi Prasar Sabha, Madras, even though she was
not having the B.A. (Hons.) in Hindi, and she could not be
allowed to do M.A. in Hindi by any recognized University.
As such, even the said appellant was not satisfying the
eligibility criteria for the post of Assistant Teacher in
Languages and has been rightly denied the post.
9. As a cumulative effect of the aforesaid rules, guidelines and judicial
pronouncement and taking into consideration the fact that admittedly, the
petitioner has not passed TET in any Language subject rather he passed for
Urdu Assistant Teacher and as such, he was not in possession of the requisite
qualification for appointed to the post of Language teacher in terms of the
advertisement and as such, this is not a fit case for interference. The cases
relied upon by the learned counsel for the petitioner is of no help to him. The
issue has now been set at rest by the Division Bench of this Court in L.P.A.
No.209 of 2017 and analogous cases. Thus, I find no illegality or infirmity in
the impugned order. This writ petition is, accordingly, dismissed.
(Ananda Sen, J.)
Kumar/Cp-02
