District Superintendent Of ... vs Saral Pandit
2023 Latest Caselaw 3254 Jhar

                             1                             LPA No.10/2021



     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               L.P.A. No.10 of 2021
                                   ------
1. District Superintendent of Education Cum District Programme
     Officer, Jharkhand Education Project Deoghar, P.O. & P.S.-
     Deoghar, District-Deoghar, through Madhuri Kumari, aged about
     59 years, W/o Sri Abhay Kumar Thakur, R/O Saket Nagar
     P.O.+P.S.+District-Deoghar (Jharkhand).
2. Block Education Extension Officer, JEP. Sarwan, P.O.+P.S.-
     Sarwan, District-Deoghar through Bandana Kumari Singh aged
     about 54 years w/o-Sri Ambuj Kumar, R/O-Castair Town,
     P.O.+P.S.+Dist-Deoghar (Jharkhand).
                        ....         ....            Appellants/Appellants
                                 Versus

1. Saral Pandit, Son of Sri Hari Pandit, Resident of Village-Upper
     Majdiha,   P.O.-Nanhidih,          P.S.-Sonarithadi,       District-Deoghar
     (Jharkhand) .... .... Contesting Respondents/Writ Petitioner
2. The State of Jharkhand.
3. Principal    Secretary,       Primary      Education,     Human     Resource
     Development Department, Government of Jharkhand, P.O.+P.S.
     Dhurwa
4. Director, Primary Education, Human Resource Development
     Department, Government of Jharkhand, P.O.+P.S. Dhurwa
                                            .... .... Performa Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE NAVNEET KUMAR
                  ------
        For the Appellants     : Mr. Krishna Murari, Advocate
                                 Mr. Raj Vardhan, Advocate
        For the respondent no.1: Mr. Bhanu Kumar, Advocate
        For the State          : Mr. Gaurav Raj, AC to AAG
                            ------

12/Dated: 30.08.2023

Per Sujit Narayan Prasad, J.

1. The instant intra-court appeal preferred under Clause-10 of

Letters Patent is directed against the order/judgment dated

07.09.2020 passed by the learned Single Judge of this Court in

W.P.(S) No.666 of 2013, whereby and whereunder, the order as

contained in letter no.112 dated 24.5.2008, so far as it relates to the

petitioner, issued by the respondent no.5, by which, the services of

the writ petitioner as Para Teacher has been terminated, has been

quashed and set aside by allowing the writ petition.

2. The brief facts of the case are required to be enumerated

which reads as under:-

3. It is the case that the writ petitioner was appointed as Shiksha

Doot (Para Teacher) for imparting education to children in the upper

Majdiha School and the petitioner joined on 27.02.2003 itself. The

writ petitioner while discharging his duty, received honorarium time to

time. But vide impugned letter no.112 dated 24.05.2008, issued by

the Block Education Officer, Sarwan, Deoghar, the services of the

writ petitioner as Para Teacher was terminated on the ground that

the petitioner did not possess the educational qualification of

intermediate or its equivalent.

4. It is the further case that the petitioner educational qualification

is Parveshika which is equivalent to matriculation from Hindi

Vidyapith, Deoghar in the year 2000 and the petitioner passed the

aforesaid examination in 2nd Division and a certificate to that effect

has been provided by the competent authority on 21.07.2001.

5. Thereafter, the writ petitioner has obtained his Visharad Degree

from Hindi Sahitya Sammellan, Prayag, Allahabad of the Session

2005-2006 and degree of Visharad along with mark-sheet of first part

and second part have been issued by the competent authority.

6. The District Superintendent of Education Cum District

Programme Officer, Deoghar issued letter no.1503 dated 01.11.2008

in reference to letter no.2251 dated 25.10.2008 by which, inter-alia

stipulation was made and direction was given that those para

teacher who have not increased their educational qualification to

intermediate or equivalent should not be retained in service as Para

Teacher.

7. The Jharkhand Academic Council, Ranchi vide letter dated

28.08.2008 issued under the signature of Secretary has clearly

stipulated that the degree of Madhyama obtained from Hindi Sahitya

Sammellan, Allahabad is equivalent to inter (Plus Two) examination.

8. The petitioner had obtained the degree of Madhyama Visharad

on 31.12.2007 and the aforesaid degree is also equivalent to

Intermediate, the termination of the services of the petitioner is illegal

and against the guidelines of the department as contained in letter

dated 01.11.2008.

9. The writ petitioner has also given representation dated

10.10.2012 to the District Superintendent of Education Cum District

Programme Officer, Deoghar for payment of arrears of honorarium

and for reinstatement in service as Para Teacher.

10. Thereafter, counter affidavit has been filed by the respondent

(DSE Cum District Programme Officer, Deoghar) and stated that the

petitioner has not submitted intermediate qualification documents till

June, 2008 and therefore, the petitioner is not entitled for

reinstatement on the post of Para Teacher.

11. It appears from the factual aspect as referred hereinabove

based upon the pleading that the writ petitioner was appointed as

para teacher but admittedly, at the time, when the appellant was not

having with the intermediate pass certificate, however, in pursuance

to the terms and conditions to obtain such degree of passing of

intermediate examination is to be produced within three years from

the date of such engagement. The writ petitioner had produced the

certificate, but not of the intermediate, rather, its equivalent, that was

issued from the Sahitya Sammelan, Prayag which commonly known

as Madhyama Certificate.

12. The learned Single Judge, has accepted the submission made

on behalf of the appellant that the Madhyama Certificate of the Hindi

Sahitya Sammelan, Prayag since has been held to be equivalent of

intermediate certificate by the Jharkhand Academic Council, hence,

the very reason based upon the order of termination passed, has

been quashed and set aside.

13. While quashing and set aside the order of termination, the

learned Single Judge has taken into consideration the judgment

passed by the Coordinate Division Bench of this Court in the case of

Sita Ram Manjhi Vrs. State of Jharkhand & Ors., passed in L.P.A.

No.117 of 2012. Being aggrieved with the order passed by the

learned Single Judge in W.P.(S) No.666 of 2013, the instant appeal

has been filed.

14. Mr. Krishna Murari, learned counsel appearing for the

appellant-Jharkhand Education Project Council has taken the

following grounds in assailing the impugned judgment:-

(i) That the Hindi Sahitya Sammelan, Prayag has been held

to be fake institution by the Hon'ble Apex Court in the

judgment rendered in the case of Rajasthan Pradesh

Vaidya Samiti, Sardarshahar & Anr. Vrs. Union of

India & Ors., reported in (2010) 12 SCC 609.

(ii) Since, the institution itself has been held to be illegal, as

such, the degree issued by such institution will also be

considered to be fake and illegal.

(iii) The Madhayma Certificate has been accepted by the

learned Single Judge, based upon its adoption by the

Jharkhand Academic Council, but the Jharkhand

Academic Council has accepted the Madhayma

Certificate to be equivalent to the intermediate certificate

up to the year 2010, if issued by the Hindi Sahitya

Sammelan, Allahabad and not of the Hindi Sahitya

Sammelan, Prayag.

(iv) The writ petitioner, admittedly was not having the

intermediate passed certificate and as per the condition

of producing the said certificate within the three years

from the date of engagement, no such certificate was

produced, which said to be valid one, therefore, the

authority has taken decision to terminate.

(v) The further ground has been taken that the order of

termination was passed on 24.05.2008 but the writ

petition was filed on 30.01.2013. But without taking into

consideration that for five years, the appellant was not

before any court of law, even then, the direction for giving

all consequential reliefs illegally admissible to him, has

been passed that to without any explanation of

approaching the Court after lapse of five years.

15. The learned Single Judge has not appreciated these aspects of

the matter, hence, the instant appeal.

16. Per contra, Mr. Bhanu Kumar, learned counsel appearing for

the writ petitioner has defended the order passed by the learned

Single Judge by agitating the following grounds:-

(i) The instant appeal is not maintainable, since, it has not

been filed by the State of Jharkhand, rather, it has been

filed on behalf of the functionaries of the Jharkhand

Education Project Council (JEPC).

(ii) Madhayma Certificate has been held to be acceptable by

the Jharkhand Academic Council and as such, it is not

available for the Jharkhand Education Project Council to

take the ground of certificate of Madhayma to be fake

and not acceptable.

(iii) The reliance has been placed upon the order passed by

the Coordinate Division of this Court in LPA No.117 of

2012, wherein, exactly, the similar issue has been

decided.

17. We have heard the learned counsel for the parties and are of

the view that before entering into merit of the issue, to answer the

issue of maintainability of the instant appeal as per the objection in

this regard made on behalf of learned counsel appearing for the writ

petitioner.

18. Admittedly herein, the writ petition was filed by the litigant

concerned, private respondent herein by impleading the following

respondents as party to the said proceeding:-

      (i)     State of Jharkhand.

      (ii)    Principal Secretary, Human Resource Development

              Department, Govt. of Jharkhand.

      (iii)   Director,   Primary   Education,     Human      Resource

Development Department, Govt. of Jharkhand.

(iv) District Superintendent of Education, Cum District

Programme Officer, Deoghar.

(v) Block Education Extension Officer, Deoghar.

19. Admittedly, the order of termination was passed by the

respondent no.5, Block Education Extension Officer, Deoghar.

20. It is further admitted fact that the learned Single Judge has

directed the respondent no.4, the District Superintendent of

Education-cum-District Programme Officer, Deoghar to look into the

matter and reinstate the petitioner by giving all consequential reliefs

legally admissible to him.

21. Therefore, the direction passed by the learned Single Judge is

not upon the State of Jharkhand or its functionaries, rather, it is upon

the District Programme Officer, Deoghar who is the competent

authority in the capacity of holding the post of District Superintendent

of Education.

22. The District Programme Officer is not a post created by the

State of Jharkhand, rather it is under the Scheme of Sarva Shiksha

Abhiyan for the purpose of monitoring the entire work of Sarv

Shiksha at the District level in the capacity of District Level

Implementation authority.

23. The District Level Implementation Authority is to be headed by

the District Collector/Magistrate/Chief Executive Officer of the Zila

Parishad. While, the Scheme also provides an officer to be there to

over-see the implementation of the programme at the district level

whose key function will be to over-see implementation of the

programme, i.e., at the level of the District Education Extension

Officer.

24. In the Block Level Structure, the same is to be headed by the

Block Education Officer and the main role of these structures would

be to provide academic supervision and on-site support to the field

functionaries, capacity building, monitoring the actual implementation

of various interventions at the grass root level by interacting with the

field level officers and providing information to the District Project

Office.

25. Thereafter, the Village/Ward Education Committee is to be

constituted, for ready reference, the entire system for the better

administration of the scheme is being referred as under:-

State Implementation Society

General Council

Headed by Chief Minister/Education Minister

(State Specific)

Executive Committee

Headed by

Chief Secretary/Development Commissioner/Education Secretary

Representation of Depts. of Finance, Planning and Rural Development

Involvement of NGOs social activities, university teachers, Panchayati Raj

representatives etc.

State Project Office

Headed by

Mission Director/State Project Director

Assisted by Coordinators looking after various components of SSA

26. The basic object of Sarva Shiksha Abhiyan (SSA) is a

comprehensive and integrated flagship programme of Government of

India to attain Universal Elementary Education (UEE), covering the

entire country in a mission mode. It has been launched in the year

2001-2002. The basic object also is to provide quality education to all

children through active participation of community in a mission mode.

With the enactment of the 86th Constitutional Amendment Act, "free

and compulsory quality education upto elementary level" has

become a Fundamental Right, thus making it mandatory for the

central and state Governments to provide for such education to each

and every child.

27. The Jharkhand Education Project Council (in short 'JEPC') is

an autonomous body registered under the Societies Registration Act,

1860. The Council has been established for bringing the fundamental

change in the elementary education system and directly influence

the overall socio-cultural scenario established for the purpose of

actively implementing the various projects/programmes like Sarva

Shiksha Abhiyan/National Programme for education of girls at

elementary level and Kasturba Gandhi Balika Vidayalaya (KGBV).

28. Under the Scheme, it is to be run by way of allocation of fund in

a particular share both by the Central and the State Government.

The Central Government is to disburse the fund in favour of the State

for the proper implementation of the Scheme with a condition that

there will be a council at National Level as also the State Level.

29. At the State Level, the same will be the State Implementation

Society having with the General Council to be headed by the Chief

Minister/Education Minister, thereafter, there will be Executive

Committee headed by the Chief Secretary/Development

Commissioner/Education Secretary and then the State Project Office

headed by the Mission Director/State Project Director assisted by

Coordinators looking after various components of Sarva Shiksha

Abhiyan (SSA). The aforesaid establishment for the purpose of

smooth running of the scheme has been shown in the tabular charge

as referred hereinabove.

30. The financial allocation is to be given to the State

Implementation Society as per the scheme itself by the central

government but the pre-condition is that the state government is to

first create a society and then only the money is to be transferred in

the name of the society.

31. The mission is to be headed by the Mission Director/State

Project Director to look into the proper implementation of the entire

scheme and the expenditure of the money as per the share to be

given by the Centre and the State, therefore, there is financial

autonomy to the society which runs under the grant of the Centre

and the State to be allocated in the certain proportion, at the moment

it is 60:40 to be allocated by the Centre and the State respectively.

32. The moment, the society has been created in order to look into

the proper implementation of the entire scheme having its financial

autonomy by way of allocation of fund both by the Centre and the

State, then according to our considered view, will be said to be have

autonomy so as to run without any interference of anybody.

33. It appears from the tabular chart that it is not under the control

of the State Government, rather, there will be a General Council

headed by the Chief Minister, the Executive Committee headed by

the Chief Secretary or Development Commissioner or Education

Secretary which itself suggests that there is no evasive control of the

State Government, save and except, the monitoring part so that the

scheme be implemented without any interruption and the fund be

allocated smoothly by the Central Government depending upon its

expenditure in the proper manner.

34. Further, the authority to appoint the para teachers is also vest

upon the State Project Office who has got ultimate control upon the

decision which is to be taken by the Block Education Extension

Officer at the Block Level or the District Programme Officer at the

District Level.

35. Since, there is no post like that of District Programme Officer,

hence, the District Superintendent of Education is to exercise ex-

officio duty of the District Programme Officer under the Sarva

Shiksha Abhiyan.

36. Here, the reference is also required to be made by referring the

order passed by the Coordinate Division Bench of this Court dated

14.06.2023, wherein, the learned counsel appearing for the State

has sought for time to seek instruction regarding the stand of the

State to assail the order impugned in the appeal.

37. Learned counsel appearing for the State has submitted that

since, the District Superintendent of Education cum District

Programme Officer, Jharkhand Education Project, Deoghar, has filed

the instant appeal and they are the aggrieved parties, therefore, the

statement made at Bar that the State of Jharkhand is not willing to

file the appeal in absence of any direction to the State of Jharkhand.

38. After having discussed the factual aspect hereinabove and

coming to the relief sought for by the writ petitioner which is against

the order of termination which was passed by the Block Education

Extension Officer, Sarwan, Deoghar, hence, we are of the view that if

the State has chosen not to file the appeal that cannot be a reason to

raise the issue of maintainability if the instant appeal has been filed

by the District Programme Officer and Block Education Extension

Officer.

39. Further, the District Programme Officer since is under the

control of the State Project Office and hence, with the permission of

the State Project Office, the litigation can be filed if any direction is

being given by the Court of law for implementation by the

functionaries who are under the control of the State Project Office.

40. This Court, therefore, is of the view that the objection regarding

maintainability which has been raised, is not sustainable.

41. Accordingly, the appeal is held to be maintainable.

42. This Court, on consideration of the admitted fact has found that

on the date of recruitment, the writ petitioner was not having

intermediate passed certificate.

43. The appellant, in terms of the condition of producing the

intermediate passed certificate within three years from the date of

engagement, had produced the Madhyama certificate which has

been claimed to be equivalent to the intermediate passed certificate

issued by the Sahitya Sammelan, Prayag.

44. The acceptance of said certificate has been insisted upon,

based upon the decision taken by the Jharkhand Academic Council,

wherein, the Madhyama certificate, according to the writ petitioner

has been treated to be equivalent to the intermediate passed

certificate.

45. This Court, in order to appreciate this ground first, has

considered the decision taken by the Jharkhand Academic Council,

wherefrom, it is evident that the council has never recognized the

equivalence of the Madhyama certificate which has been issued by

the Sahitya Sammelan Prayag, rather, the equivalence has been

given of the certificate issued by the Sahitya Sammelan, Allahabad,

for ready reference, the relevant part of such decision taken by the

Jharkhand Academic Council is being referred as under:-

"िनदे शानुसार आपके प ां क 938/3 िदनां क 27.06.08 के संबंध म सूिचत

करना है िक झारख अिधिव प रषद ने िदनां क 09.08.08 की बैठक म

िह ी सािह स ेलन इलाहाबाद ारा संचािलत थमा एवं म मा परी ाओं

को प रषद् की मशः मा िमक एवं इ र (+2) परी ाओं के समक मा ता

दान की है ।''

46. Thus, we are of the view on the basis of the discussion that the

Madhyama certificate issued by the Sahitya Sammelan, Prayag, has

not been recognized equivalent to the intermediate passed

certificate.

47. Coming to the second ground that the Sahitya Sammelan

Prayag is not fake, for which, our attention has been drawn towards

the judgment rendered by the Hon'ble Apex Court in the case of

Rajasthan Pradesh Vaidya Samiti Sardarshahar (supra).

48. On consideration of judgment particularly the conclusion part,

wherein, the certificate issued from Hindi Sahitya Sammelan,

Prayag, has been held neither a university/deemed university nor an

educational board, for ready reference, paragraphs-51 and 53 of the

said judgment are being referred as under:-

"51. At the cost of repetition, it may be pertinent to mention here that in view of the above, we have reached to the following inescapable conclusions:

(I) Hindi Sahitya Sammelan is neither a university/deemed university nor an educational board.

(II) It is a society registered under the Societies Registration Act, 1860.

(III) It is not an educational institution imparting education in any subject inasmuch as ayurveda or any other branch of medical field.

(IV) No school/college imparting education in any subject is affiliated to it. Nor Hindi Sahitya Sammelan is affiliated to any university/board.

(V) Hindi Sahitya Sammelan has got no recognition from the statutory authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the 1970 Act and further did not seek modification of Entry 105 in Schedule II to the 1970 Act. (VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has some elementary/basic education or has attended classes in ayurveda in any recognised college.

(VII) After commencement of the 1970 Act, a person not possessing the qualifications prescribed in Schedules II, III and IV to the 1970 Act is not entitled to practise. (VIII) Mere inclusion of the name of a person in the State Register maintained under the State Act is not enough for making him eligible to practise.

(IX) The right to practise under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19(6) of the Constitution. (X) Restriction on practise without possessing the requisite qualifications prescribed in Schedules II, III and IV to the 1970 Act is not violative of Article 14 or ultra vires to any of the provisions of the State Act.

53. In view of the above, the civil appeal arising out of SLP (C) No. 21043 of 2008 is allowed and it is held that a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan, Prayag after 1967 is not eligible to indulge in any kind of medical practice. All other civil appeals are dismissed. No costs."

49. It is evident from paragraph-53, as referred hereinabove that a

person who acquired the certificate, degree or diploma from Hindi

Sahitya Sammelan, Prayag after 1967 is not eligible to indulge in any

kind of medical practice. However, in the said judgment, the

reference of the judgment passed by the Allahabad High Court has

been taken as under paragraphs-30 to 33, which deal regarding the

validity of the Hindi Sahitya Sammelan, Allahabad also.

50. Therefore, on the basis of the judgment rendered by the

Hon'ble Apex Court in the said case also, the Sahitya Sammelan,

Prayag has been held to be fake institution.

51. But the emphasis of the argument herein is that the Madhyama

certificate issued from the Hindi Sahitya Sammelan, Prayag, has

been held to be equivalent by the Jharkhand Academic Council but

that is not the correct fact as per the discussion made in the

preceding paragraphs.

52. The third argument is that the Coordinate Division Bench of

this Court has passed an order in LPA No.117 of 2012, as has been

appended as Annexure-8 to the memo of appeal.

53. We have considered aforesaid judgment and found from the

factual aspects involved therein that the Coordinate Division Bench

while accepting the Madhyama certificate equivalent to the

intermediate passed certificate which was issued from Hindi Sahitya

Sammelan, Allahabad as per the recognition of equivalence given by

the Jharkhand Academic Council vide its letter dated 28.08.2010

clearly conveyed that the degree of Madhyma given by the Hindi

Sahitya Sammelan, Allahabad is equivalent degree to the

intermediate as well as (+2) course, for ready reference, the said part

of the order is being referred as under:-

"Learned counsel for the writ petitioner-appellant

further submitted that even Jharkhand Academic

Council vide its letter dated 28.08.2010 clearly

conveyed that the degree of Madhyma given by

the Hindi Sahitya Sammelan, Allahabad is

equivalent degree to the Intermediate as well as

(+2) course."

54. The argument of the learned counsel for the appellant that the

learned Single Judge has passed the order by keeping the

applicability of the judgment passed by the Division Bench of this

Court in LPA No.117 of 2012, but, we are not impressed with such

argument since herein it is not the case of the appellant that the

Madhyama certificate which is now being claimed to be equivalent to

the intermediate passed certificate was issued from the Sahitya

Sammelan, Allahabad, rather, it was issued from Sahitya Sammelan,

Prayag.

55. But, the learned Single Judge has not appreciated the

aforesaid fact and has accepted the validity of the said Madhyama

certificate, even though, the same was issued from the Hindi Sahitya

Sammelan, Prayag, therefore, the very applicability of the judgment

passed by the Division Bench of this Court in LPA No.117 of 2012 in

the facts and circumstances of the case, is not applicable, hence, the

reliance as is being claimed on behalf of the writ petitioner upon the

judgment rendered by the Division Bench of this Court in LPA No.117

of 2012 is not at all applicable.

56. This Court, on the basis of the entirety of the facts and

circumstances of the case as referred hereinabove and coming to

the order passed by the learned Single Judge, wherein, the reliance

has been placed upon the judgment passed by the Coordinate

Division Bench of this Court in LPA No.117 of 2012, but as per the

discussion made hereinabove, on fact more particularly, the

Madhyama certificate in the instant case, has been issued from the

Sahitya Sammelan, Prayag, is of the view that the certificate issued

from Sahitya Sammelan, Prayag has not been held to be equivalent

to the intermediate passed certificate, rather, in the said LPA No.117

of 2012, the Madhyama certificate was issued by the Sahitya

Sammelan, Allahabad.

57. This Court, therefore, is of the view that allowing the writ

petition by interfering with the impugned order based upon the

finding recorded by the Division Bench of this Court in LPA No.117 of

2012, is an error committed while passing the order.

58. Accordingly, we are of the view that the impugned order needs

to be interfere with.

59. In view thereof, the order dated 07.09.2020 passed by the

learned Single Judge in W.P.(S) No.666 of 2013 is hereby quashed

and set aside.

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

61. In consequence thereof, the writ petition being W.P.(S) No.666

of 2013 is dismissed.

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

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

Rohit/-A.F.R.