Sanjeet Kumar vs The State Of Jharkhand
2024 Latest Caselaw 1463 Jhar

Jharkhand High Court

Sanjeet Kumar vs The State Of Jharkhand on 13 February, 2024

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                W.P.(S) No. 7006 of 2023

            Sanjeet Kumar, son of Sri Yamuna Prasad, aged about 40 years,
            resident of Chaundauri Road, Nearby Alka Rest House, P.O. - GPO,
            P.S. - Giridih, District - Giridih, Jharkhand
                                                          ...    ...     Petitioner
                                       Versus
            1. The State of Jharkhand
            2. Secretary/Principal Secretary, School Education & Literacy
               Department, Government of Jharkhand, Project Bhawan, P.O. &
               P.S. - Dhurwa, District - Ranchi, Jharkhand
            3. Director, Primary Education, School, Education & Literacy
               Department, Primary Education Directorate, Government of
               Jharkhand, Project Bhawan, P.O. & P.S. - Dhurwa, District-
               Ranchi, Jharkhand.
            4. The Deputy Commissioner-cum-Chairman, District Education
               Establishment Committee, Dhanbad, P.O. G.P.O., P.S. Sadar,
               District- Dhanbad, Jharkhand.
            5. The Superintendent of Education, Dhanbad, P.O. G.P.O., P.S.
               Sadar, District - Dhanbad, Jharkhand.
            6. The Area Education Officer, Dhanbad, P.O.- G.P.O., P.S. Sadar,
               District- Dhanbad, Jharkhand.
            7. National Council for Teachers Education, through its Chairman,
               Hans Bhawan, Wing-II, Bahadur Shah Zafar Marg, P.O-
               Indraprashtha, Ps - Indraprashtha, New Delhi
                                                     ...     ...       Respondents
                                       ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

            For the Petitioner         : Mr. Saurabh Shekhar, Advocate
            For the NCTE               : Mr. Sunil Kumar, Advocate
            For the State              : Mr. Nitesh Kumar, AC to SC Mines III
                                       ---

02/13.02.2024        Learned counsels for the parties are present.

2. This writ petition has been filed for the following reliefs:

"(i) For issuance of appropriate writ(s), order(s) or direction(s), particularly a writ in the nature of certiorari for setting aside the decision that has been communicated to the petitioner, in pursuance to the reply under Right to Information Act, by Respondent No. 5, whereby the appointment of the petitioner has been said to have not been considered for the reason that the petitioner is Graduate in Commerce, and hence, his candidature for appointment to the post of Assistant Teacher in pursuance to the Advertisement No. 05/2015 has remained unanswered (there has been no other communication or order of rejection).

And

(ii) For issuance of appropriate writ(s), order(s) or direction(s), particularly a writ in the nature of mandamus, commanding upon the respondents to consider the case of the petitioner for appointment to the post of Assistant Teacher in the category of Social Science against the Degree of Graduation in Commerce, in pursuance to the rules/guidelines of the State Government, NCTE and the decision of Hon'ble High Court passed in W.P.(S) No. 963/2017 and analogous matters, confirmed in L.P.A. No. 122/2020 and analogous matters.

And

(iii) For issuance of appropriate writ(s), order(s) or direction(s), particularly a writ in the nature of mandamus, commanding upon the respondents to grant appointment to the petitioner, along with all other consequential benefits to the post of Assistant Teacher, in the category of Social Science, in appropriate district.

AND/OR

(iv) For the issuance of such other writ, order or direction as may appear just and proper in the facts and circumstances of the case for doing conscionable justice to the petitioner."

3. The matter arises out of recruitment of Assistant Teacher vide Advertisement No.5 of 2015. The case of the petitioner is that the petitioner was possessing qualification of graduation in commerce and was eligible in all respects and was called for counselling for which he appeared on 03.06.2019 but ultimately no letter of appointment was issued to the petitioner although his merit position was 2nd bearing roll no.9550. The petitioner sought information under Right to Information Act and was informed vide letter dated 16.10.2019 that the petitioner cannot be appointed as the degree of the petitioner is under stream of commerce. The learned counsel has referred to Annexure - 2 dated 24.07.2019 to submit that in one of the communications issued to another candidate under Right to Information, it was mentioned that the matter is pending before the High Court.

4. The learned counsel has submitted that the batch of writ petitions filed in the year 2017 being W.P.(S) No.963 of 2017 and other analogous cases were decided on 12.09.2019 arising out of the same advertisement wherein inter alia termination of the various writ petitioners on the ground that they were having commerce graduate was under challenge and their termination order was set aside by citing reasons as mentioned in paragraph no.12 of the said judgment. Against the judgement of the learned writ court, LPA No.122 of 2020 and other analogous cases were filed and the cases have been decided vide judgment dated 20.02.2023 and the respondents have been directed to take a policy decision in the matter. He has submitted that as a consequence of the order passed in the batch of writ petitions read with the Letters Patent Appeal, the persons who were inducted in service even from the stream of commerce graduate, have not been discontinued in service. The learned counsel submits that since the

petitioner is also a commerce graduate therefore appropriate relief as prayed for in this writ petition be granted to the petitioner.

5. After hearing the learned counsel for the petitioner and considering the facts and circumstances of this case, it appears that arising out of the same advertisement a few candidates were inducted as Assistant Teacher though they were commerce graduate and soon after their induction they were terminated from service on the ground that they were not eligible. The order of termination was challenged in W.P.(S) No.963 of 2017 and other analogous cases and appropriate relief was granted to the said petitioners vide paragraph nos.12, 13 and 14 which are quoted as under:

"12. As a sequitur to the aforesaid rules, observations, guidelines and judicial pronouncement, this Court is of considered opinion that the impugned orders are not sustainable in the eyes of law for the following facts and reasons :-

1. From perusal of the documents brought on record and consideration of the relevant Rules of the NCTE and also subsequent amendments/ modifications, it transpires that Graduates of any stream are eligible for appointment as Graduate Trained Teacher for Class VI to VIII.

2. In case of Bhim Narayan Das Vs. The State of Jharkhand [W.P.(S) No.3246 of 2017], the respondent- State of Jharkhand has come out with a Memo dated 28.08.2018, whereby it has been clarified that Graduation Degree obtained on the basis of Commerce syllabus can be kept under the Category of Social Science under the provisions of Jharkhand Primary School Teachers Appointment Rules, 2012.

3. Vide Memo No. 858 dated 29.04.2019 issued by the DSE, Dumka, the services the petitioner in W.P.(S) No.3246 of 2017 has been reinstated in view of Memo dated 28.08.2018, considering the Commerce Graduates eligible for appointment as Assistant Teachers, and subsequently, the order of termination was recalled vide Memo dated 29.04.2019, which shows that even the Commerce Graduates can be considered for appointment as Assistant Teacher in Arts Stream as Commerce Degree has been considered to similar degree as that of Social Science.

4. The Hon'ble Apex Court in case of State of Uttar Pradesh & Ors. Vs. Shiv Kumar Pathak & Ors., reported in (2018) 12 SCC 595 at para 14 & 17 has held thus :-

" 14. On the other hand, the stand of the original writ petitioners is that the subject of education falls under Schedule VII List III Entry 25 of the Constitution after the 42nd Amendment. Thus, by virtue of Article 254 of the Constitution, the law made by Parliament prevails over any law made by the State. It was submitted that the NCTE Act has been enacted by Parliament to achieve "planned and coordinated development of the teacher education system". The

Council constituted under the Act is empowered to issue guidelines under Sections 12 and 12-A for ensuring planned and coordinated development of teacher education and also to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher. Further, vide Notification dated 31-3-2010 under Section 23 of the RTE Act, the Central Government has authorised NCTE as the "academic authority" to lay down minimum qualifications for a person to be eligible for appointment as a teacher.

17. There is no manner of doubt that NCTE, acting as an "academic authority" under Section 23 of the RTE Act, under the Notification dated 31-3-2010 issued by the Central Government as well as under Sections 12 and 12-A of the NCTE Act, was competent to issue Notifications dated 23-8- 2010 and 11-2-2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. However, since NCTE itself has taken the stand that Notification dated 11-2-2011 with regard to the weightage to be given to the marks obtained in TET is not mandatory which is also a possible interpretation, the view of the High Court in quashing the 15th Amendment to the 1981 Rules has to be interfered with. Accordingly, while we uphold the view that qualifications prescribed by NCTE are binding, requirement of weightage to TET marks is not a mandatory requirement."

13. In view of the specific stands of the respondents and in view of the Memo dated 28.08.2018 and 29.04.2018, the orders of termination i.e. impugned order dated 02.12.2016 issued by respondent No.4 [in W.P.(S) No.963 of 2017], impugned order dated 03.11.2016 issued by respondent No.3 [in W.P.(S) No.476 of 2017], impugned order dated 28.07.2016 issued by respondent No.3 [in W.P.(S) No.1386 of 2017], impugned order dated 03.11.2016 issued by the respondent No.4 [in W.P.(S) No.6692 of 2016], impugned order dated 02.12.2016 issued by the respondent No.4 [in W.P.(S) No.917 of 2017], impugned order dated 02.12.2016 issued by the respondent No.4 [in W.P.(S) No.4645 of 2018] and impugned order dated 19.08.2017 issued by the respondent No.4 [in W.P.(S) No.5390 of 2017 are hereby quashed and set aside.

14. As a sequel of the quashment of the impugned orders, the respondents are directed to reconsider the case of the petitioners for appointment to the post of Assistant Teacher in Classes VI to VIII under the Social Science Subject with back wages. As far as issue of payment of salary for the period for which they have not worked due to their termination is left open for consideration by the department concerned."

6. From perusal of the said judgment, it appears that as a sequence of quashment of the impugned orders, the respondents were directed to reconsider the case of the petitioners for appointment to the post of Assistant Teacher in Class VI to VIII under social science subject and the order of termination was set-aside.

7. However, when the order of the learned writ Court was challenged in batch of LPA being LPA No.122 of 2020, the Hon'ble Division Bench framed the issue at paragraph no.9 as follows:

"9. The issue involved in all the writ petitions pertains to qualification for appointment on the post of a Teacher for class-VI to class-VIII in the Primary Schools within the State of Jharkhand."

The finding has been recorded from paragraph nos.10 to 15 are quoted as under:

"10. The writ Court has taken a view that the writ petitioners possessed the requisite qualification of having a graduation degree not being a Science graduate as required under the Notification dated 23rd August 2010 issued by the National Council for Teacher Education (in short, NCTE).

11. The issue which was debated before the writ Court was whether the qualification as notified by the NCTE which is the Academic Regulator is binding on the State of Jharkhand. A related issue which fell for consideration before the writ Court was whether the writ petitioners who were having Bachelor of Commerce (in short, B.Com) degree and otherwise qualified for appointment as Assistant Teacher for class-VI to class-VIII were rightly and validly appointed.

12. Under the Right of Children to Free and Compulsory Education Act, 2009 appointment of atleast one teacher of (i) Science and Mathematics

(ii) Social Studies and (iii) Languages for every 35 children is mandatory.

There is no dispute with respect to appointment of teachers under "Science and Mathematics" and "Languages" streams. What was debated before the writ Court was whether a candidate holding B.Com degree would qualify under "Social Studies" stream. The writ petitioners have taken a stand that this issue stood resolved by the communication dated 28th August 2018 whereunder after a discussion with different Universities, the Department of Higher Education, Government of Jharkhand has communicated to the Principal Secretary, School Education and Literacy Department, Ranchi, Jharkhand that there is no segregation between Commerce graduate and Arts graduate and the Commerce graduate may also be eligible for appointment as Assistant Teacher for class-VI to class-VIII.

13. However, in its counter-affidavit filed in WP(S) No. 1386 of 2017, the NCTE has taken a stand that the writ petitioners who were holding B.Com degree were not eligible for appointment under the subject advertisement which was issued on 3rd July 2015. This affidavit filed on behalf of the NCTE has been sworn by Mr. Pradeep Kumar Yadav, Regional Director, ERC, NCTE, Bhubaneshwar, but then, there is no notification/clarification issued by the NCTE declaring that a Commerce graduate is not eligible for appointment as Assistant Teacher under the "Social Studies" stream. At the same time, the State of Jharkhand has also not come out with any notification/circular indicating that Commerce as a subject also falls under "Social Studies" stream.

14. In the aforesaid fluid state of affairs, there was definitely a vacuum in the field and this created confusion in the minds of the appointing authority. Against the writ petitioners, there is no other objection as to their eligibility and suitability for appointment as Assistant Teacher for class-VI to class-VIII in the Primary Schools within the State of Jharkhand.

15. Our attention has also been drawn to the order dated 15th July 2022 passed in Contempt Case (Civil) No. 1270 of 2019 and batch matters wherein the contempt Court has recorded the statement made on behalf of the State of Jharkhand which took a stand that vide Notification dated 13th July 2022 the writ Court's order has been complied by the State of Jharkhand."

In paragraph no.15 of the aforesaid order dated 20.02.2023 passed in the L.P.A., a reference has been made to the order dated 15.07.2022 passed in Contempt Case (Civil) No.1270 of 2019 and batch matters wherein the State of Jharkhand took a stand that vide notification dated 13.07.2022 the order passed by the writ Court has been complied by the State of Jharkhand.

The Hon'ble Division Bench refused to condone delay in filing the LPAs vide paragraph no.16 of the judgment and consequently the Letters Patent Appeals were also dismissed. However, the Hon'ble Division Bench made appropriate observation in paragraph no.18 stating that it was expected that the State of Jharkhand shall come out with a definite policy keeping in mind the candidates who have obtained B.com degree.

8. Paragraph no.18 of the judgment passed in LPA No.122 of 2020 and other analogous cases are quoted as under:

"18. The appointment of a Teacher for class-VI to class-VIII in the Primary Schools within the State of Jharkhand under the "Social Studies"

stream has been raging for about a decade but the State of Jharkhand is yet to come out with a definite policy in this regard. There is no notification issued by the NCTE in the form of clarification. But without expressing any final opinion in the matter, we expect that the State of Jharkhand shall come out with a definite policy in this regard which it can validly do in the face of the gap created due to absence of any amendment or clarification from the NCTE, but, of course, keeping in mind the interests of the candidates who have obtained B.Com degree."

9. The fact remains that as per paragraph 18 of the judgment passed in the aforesaid L.P.A, the Hon'ble Division Bench has not expressed any final opinion in the matter and has asked the State to take a policy decision in the matter of candidates with B.Com degree vide order dated 20.02.2023 in LPA No.122 of 2020 and other analogous cases. There is also a distinguishing fact with regard to the petitioner inasmuch as the petitioners in the aforesaid cases decided by this Court were already appointed and later on their appointment was cancelled and so far as the petitioner is concerned, no letter of appointment has been issued. The Division Bench having passed an

order for taking a policy decision and having not expressed any final opinion in the matter, this Court is not inclined to grant any relief as prayed for by the writ petitioner in this writ petition at this stage. Accordingly, this writ petition is dismissed.

(Anubha Rawat Choudhary, J.) Saurav