Jharkhand High Court
Moinuddin vs State Of Jharkhand on 14 February, 2023
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 46 of 2014
Moinuddin, son of Jalaluddin, Assistant Teacher, Urdu Town Middle
School, Chakradharpur, Post Office and Police Station-Chakradharpur,
District-Singhbhum (West), Jharkhand.
... ... Petitioner/Appellant
Versus
1. State of Jharkhand.
2. Director of Primary Education, Jharkhand, Ranchi. Post Office Ranchi,
Police Station-Ranchi, District-Ranchi.
3. District Education Officer, Chaibasa, Post Office and Police Station-
Chaibasa, District-Singhbhum (West).
4. District Superintendent of Education, Chaibasa, Post Office and Police
Station-Chaibasa, District-Singhbhum (West).
5. Secretary, Urdu Town Middle School, Chakradharpur, Post Office and
Police Station-Chakradharpur, District-West Singhbhum (Jharkhand).
... ... Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
-------
For the Appellant : Mr. M.M. Pal, Sr. Advocate
Mr. S.C. Roy, Advocate
For the Respondent : Mr. Anish Kumar Mishra, AC to SC-II
----------------------------
CAV/Reserved on 02.02.2023 Pronounced/Delivered on 14 .02.2023
Per Sujit Narayan Prasad, J.
1. This appeal under Clause 10 of the Letters Patent is directed against the
order/judgment dated 12.12.2013 passed by learned Single Judge of this
Court in W.P.(S) No. 2823 of 2003, whereby and whereunder, the writ
petition has been dismissed declining to interfere with the order dated
06.09.2002 by which the proposition statement regarding approval of the
5th Pay Revision of the writ petitioner has been rejected and the order dated
06.12.2002 by which the respondent no.5 has been directed to take
necessary action so far as to terminate the services of the writ petitioner
and to refund the amount and for a direction on the respondent to pay the
writ petitioner the revised pay scale.
[2]
2. The brief facts as per the pleading made in the writ petition, which require
to be enumerated herein, read as under:
In January, 1993 an advertisement was issued for filling up two
posts of teachers in Matric-trained scale in the Urdu Town Middle School,
Chakradharpur out of which one for B.Sc. and another for Physical
Education. The writ-petitioner submitted his application and he was
selected for appointment on the post of Assistant Teacher. The Urdu Town
Middle School is a minority institution and the appointment letter dated
20.02.1993 was issued by the then Secretary of the Managing Committee
of the School. The writ-petitioner has qualification of Bachelor of Arts and
he has acquired Dip.-Ed. also.
By order dated 01.07.1994, the District Superintendent of
Education, Singhbhum West, Chaibasa provisionally approved the
appointment of the writ-petitioner w.e.f. 04.03.1993. The writ-petitioner
was paid salary in the scale of Matric-trained, i.e. Rs 580-860 regularly. By
letter dated 16.03.1999, the District Superintendent of Education directed
the Secretary of all the primary and middle school to submit details with
respect to sanctioned posts and teachers working in the minority institutes.
In Urdu Town Middle School 10 posts of teachers were sanctioned and
there were 9 teachers including the writ-petitioner, working in the school.
On 27.08.1998 a proposition statement was sent by the District
Superintendent of Education to the Director, Primary Education for
approval of the pay-scale of the teachers working on the sanctioned post.
The proposition statement of the writ-petitioner was not approved and it
was kept pending and his salary was stopped and therefore, the petitioner
moved the High Court in CWJC No. 278 of 1999 (R), which was disposed
of on 15.12.2000 with a direction to the District Superintendent of
Education to pass a reasoned order and with a further direction to pay the
admitted salary to the writ-petitioner, if found due, within one month. But,
the order having not been complied with, the petitioner preferred a
Contempt Petition being Contempt Case No. 286 of 2001. During the
pendency of the contempt petition, order dated 22.02.2001 was passed
rejecting the claim of the writ-petitioner. The writ-petitioner moved this
Court by filing WP(S) No. 2349 of 2001 challenging order dated
[3]
22.02.2001, which was disposed of by order dated 07.03.2002 with a
direction to the respondents to obtain necessary approval of the
propositional statement. The writ-petitioner again moved this Court by
filing Contempt (Civil) No. 467 of 2002. By order dated 06.09.2002 the
proposition statement of the petitioner was rejected on the ground that only
one post of B.A. trained teacher and one post for Inter-trained teacher were
sanctioned, whereas in the advertisement issued in January, 1993 one post
of teacher in Scout, Sports and Drill was advertised by the School for
which no sanction was accorded by the Government. The writ-petitioner
was neither Matric-trained at the time of his appointment nor there was a
vacant post for Matric-trained teacher.
The writ petitioner in the aforesaid background being aggrieved
with orders dated 06.09.2002 and 06.12.2002 approached to this Court by
filing writ petition being W.P.(S) No. 2823 of 2003 but the same has been
dismissed declining to interfere with the impugned order which is the
subject matter of the instant appeal.
3. Mr. M.M. Pal, learned senior counsel appearing for the writ petitioner has
taken the ground that since the writ petitioner was appointed pursuant to
the selection done by the Managing Committee of the School on the basis
of due advertisement notified and his appointment has been approved by
the District Superintendent of Education vide order dated 01.07.1994 w.e.f
04.03.1993 and as such, rejecting the proposition statement of the writ
petitioner, cannot be said to be proper reason being that once the
appointment of the writ petitioner has been made after following the due
procedure and against the sanctioned post, it was incumbent upon the
authority to approve the proposition statement.
It has further been submitted that the writ petitioner has
continued for a considerable period, i.e., for 20 years and pursuance to the
order passed by this Court, he has been paid salary though not in the
revised scale, the proposition statement of the writ petitioner could not be
rejected on the plea that there was no sanctioned post for Scout, Sports and
Drill. According to the learned senior counsel, the post of Physical
Instructor is a equivalent to the post of Assistant Teacher and the writ
[4]
petitioner who is a graduate is duly qualified for being appointed on the
post of Assistant Teacher.
It has further been argued that though letters were written to the
respondent-authority for sending the petitioner for training, for unknown
reasons the petitioner was not sent for training and therefore, it is not open
to the respondent-authority to take the plea that, the petitioner was not duly
qualified.
4. While, on the other hand, Mr. Anish Kumar Mishra, AC to SC-II has taken
the ground while defending the order passed by the learned Single Judge
that initial appointment of the writ petitioner is illegal, as such, the
proposition statement, if rejected, the same cannot be said to suffer from
error.
It has been submitted that the writ petitioner has not passed the
minimum educational qualification for being appointed on the post of
Assistant Teacher and as such, the very appointment made in favour of the
writ petitioner by the Managing Committee of the School is perse illegal.
5. We have heard the learned counsel for the parties, perused the documents
available on record as also the finding recorded by the learned Single
Judge.
6. The undisputed fact in this case is that the school in question is a minority
aided school. The Management came out with an advertisement for filling
up two sanctioned posts in the Matric-Trained scale having one post for
B.Sc. and another for having interest in Scott, Sport and Drill.
It is the case of the writ petitioner that in pursuance of the
aforesaid advertisement, due application had been made considering
himself to be qualified having B.A. and Diploma in E.D. (Physical
Trained). The writ petitioner, after due selection, was appointed to the post
of Assistant Teacher in the scale of Matric-Trained teacher, i.e., the scale of
Rs.580-860/-. The writ petitioner, thereafter, had passed the Bachelor of
Physical Education Examination (one year degree course) in the University
and being physical trained was/is interested for sports and drill and
accordingly, as such, he has justified his eligibility to hold the said post.
[5]
The writ petitioner was appointed to the post of Assistant
Teacher vide order dated 20.02.1993 subject to the approval of the
Education Department, Government of Bihar and subject to passing of the
medical examination by the competent authority. The writ petitioner has
joined to the post on 04.03.1993. The District Superintendent of Education,
Singhbhum West, Chaibasa approved the appointment of the writ petitioner
vide order dated 01.07.1994 w.e.f. 04.03.1993 stating specifically that on
the basis of the recommendation of the Area Education Officer/CKP, the
appointment of the writ petitioner is being approved as Matric Trained
Teacher. Thereafter, the writ petitioner was being paid regular salary in the
Matric Trained Scale.
The writ petitioner being aggrieved on non-consideration of the
benefit of pay revision having not been extended in his favour for the
period from January, 1998 to June, 1998 but was kept pending, has filed
writ petition being C.W.J.C. No. 278 of 1999 (R), which was disposed of
on 15.12.2000 with a direction to the District Superintendent of Education
to pass a reasoned order and to pay the admitted salary to the writ-
petitioner, if found due, within one month. The aforesaid order having not
been complied with, the writ-petitioner preferred a Contempt Petition being
Contempt Case No. 286 of 2001 and during its pendency, a reasoned order
dated 22.02.2001 was passed rejecting the claim of the writ-petitioner on
the ground that his appointment was made in minority school and the
payment of minority school is to be paid from the fund allotted by the
Government, as such, vide order dated 01.10.1996 his salary was withheld
by the order passed in this regard by the District Superintendent of
Education. The proposition statement of the writ petitioner sent to the
office of the Director vide letter dated 27.08.1998 since has not been
approved, being aggrieved with such rejection order dated 22.02.2001,
again approached to this Court by filing writ petition being W.P.(S) No.
2349 of 2001 which was disposed of by order dated 07.03.2002 with a
direction to the respondents pay his arrears of salary of revised pay scale
and also directed to the respondent to obtain necessary approval of the
proposition statement.
[6]
Subsequent thereto, the proposition statement has also been
rejected vide order dated 06.09.2002 passed by the Director, as such the
writ petition again preferred writ petition being W.P.(S) No. 2823 of 2003.
The learned Single Judge has given its finding that there cannot be any
appointment in absence of sanctioned post and further the candidate cannot
be appointed having no eligibility.
7. The issue is settled that there cannot be any appointment beyond the
sanctioned strength and appointment if made beyond the sanctioned
strength will be said to be illegal appointment. The difference between the
irregular and illegal appointment has been considered by the Hon'ble Apex
Court in Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors.,
2006 (4) SCC 1 as under paragraph-53 wherein the irregular appointment
has been said to be an appointment which suffers from procedural
irregularity, i.e., irregularity which is curable. While on the other hand, the
illegal appointment has been held to be illegal appointment which has been
made beyond the sanctioned strength and of a candidate having no
qualification required to hold the post. The difference in between the
irregular and illegal appointment has again been considered in State of
Karnataka & Ors. vs. M.L. Kesari & Ors., (2010) 9 SCC 247.
8. The question of availability of sanctioned post in the facts of the given case
is of utmost importance and as such the same is first required to be
considered.
9. The advertisement reflects as was issued by the Urdu Town Middle School
that the application were invited for appointment on two sanctioned posts
in the Matric Trained pay scale. The State has taken the plea by making
reference of the memo no. 37 dated 16.01.1991 wherein the reference of
two posts has been made to be sanctioned, i.e., graduate trained teacher and
intermediate trained teacher which was approved by the Human Resources
Department of the State of Jharkhand.
10. Admittedly herein, as would appear from the appointment letter dated
20.02.1993 issued by the Secretary of the School by which it reflects that
the writ petitioner was appointed in the Matric Trained Pay Scale. But, as
would appear from the memo no. 37 dated 16.01.1991, whereby and
[7]
whereunder, there is no reference of the post having Matric Trained scale
rather two posts have been created one post of graduate trained teacher and
one post of intermediate trained teacher. Therefore, the fact demonstrates
that the writ petitioner since was appointed as Assistant Teacher in Matric
Trained Scale but as per the policy decision of the respondent-State as
appended in Memo No. 37 dated 16.01.1991there is no post available of
Assistant Teacher in Matric Trained Teacher, as such, it cannot be said to
be correct submission made by the learned senior counsel for the appellant-
writ petitioner that the writ petitioner has been appointed against the
sanctioned post.
11. The second ground of dismissal of writ petition declining to interfere with
the impugned decision passed by the administrative authority is that the
writ petitioner is having educational qualification.
We have scrutinized the same and found through the provision of
Bihar Non-Government Elementary Schools (Taking Over & Control) Act,
1976 as contained in Memo No. 2501 dated 31.12.1982 which contains a
provision providing therein that the teachers appointed in Government
aided minority schools must possess minimum educational qualification of
Matric Trained and approval for appointment of untrained teachers after
01.01.1971 would not be granted. For ready reference, the said provision
reads as under:
"(iv) - --
(क) ...
(ख) क क क क ग । 1
, 1971 क क क क
ग । क एक क औ एक ए
कक ग I"
12. This Court, after considering the provision as contained under Section 8 of
the Act, 1976 in the memo no.2501 dated 31.12.1982 as quoted and
referred hereinabove, has considered the stand of the writ petitioner about
his educational qualification from which it is evident that the writ petitioner
is a graduate and has been appointed as Assistant Teacher in Matric
Trained Scale. The minimum qualification for the Matric Trained scale is
[8]
that a candidate must be having the training but it is the case of the writ
petitioner that he is having B.A. with Diploma in Education.
13. There is no dispute that the Diploma in Education cannot be considered to
be at par with the Bachelor in Education which is only to be considered to
be a trained teacher for the purpose of appointment as teacher, after coming
into effect of the Act, 1976 as per the provision contained under Section 8
thereof. Therefore, the writ petitioner is also having no requisite
qualification to hold the post.
14. The learned senior counsel has taken the ground that the writ petitioner
since has been appointed way back and he has rendered his service for last
20 years and as such, he be allowed to continue in service but such
contention cannot be said to be acceptable on the legal parameters reason
being that the appointment if is illegal, the same cannot be legalized and
the illegality which has crept up in its inception, the same cannot be
legalized as per the law laid down by the Hon'ble Apex Court in State of
Orissa and Anr. vs. Mamata Mohanty, (2011) 3 SCC 436, wherein at
para-37 it has been held which reads as under:
"37. It is a settled legal proposition that if an order is bad in its inception, it
does not get sanctified at a later stage. A subsequent action/development
cannot validate an action which was not lawful at its inception, for the
reason that the illegality strikes at the root of the order. It would be beyond
the competence of any authority to validate such an order. It would be
ironic to permit a person to rely upon a law, in violation of which he has
obtained the benefits. If an order at the initial stage is bad in law, then all
further proceedings consequent thereto will be non est and have to be
necessarily set aside. A right in law exists only and only when it has a
lawful origin."
15. Further, the position of law is well settled that the illegality if surfaced at
any time, the moment it came to the knowledge of the authority concerned,
the same is to be rectified which is on the principle that illegality cannot be
allowed to be perpetuated as has been held by the Hon'ble Apex Court in
State of Orissa and Anr. vs. Mamata Mohanty (supra).
16. This Court, after having discussed the legal position as also the factual
aspect as above as also scrutinized the finding recorded by the learned
Single Judge, is of the view that the learned Single Judge has considered
the issue of non-availability of sanctioned post and the writ petitioner
having no educational qualification to hold the post of Assistant Teacher,
[9]
and has declined to interfere with the impugned orders, which according to
the considered view of this Court, cannot be said to suffer from error.
17. Accordingly, the instant appeal fails and stands dismissed.
18. Pending interlocutory application(s), if any, also stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Saurabh /A.F.R.
