Jharkhand High Court
Prerna vs State Of Jharkhand on 8 January, 2024
Author: Rajesh Shankar
Bench: Rajesh Shankar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.5274 of 2023
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Prerna .......... Petitioner.
-Versus-
1. State of Jharkhand, through Chief Secretary, Project
Building, Dhurwa, Ranchi.
2. Department of School Education & Literacy Development
through its Secretary, M.D.I. Building, Dhurwa, Ranchi.
3. District Education Officer, Telaiya.
4. C.H. +2 High School, Jhumri Telaiya, through its Principal.
5. Department of Personnel & Training, Ministry of Personnel,
P.G. and Pensions, Government of India, through its
Secretary, North Block, New Delhi-110 001.
.......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Shobha Gloria Lakra, Advocate
For the State : Mr. Abhinay Kumar, A.C. to G.A.I
For Res. No.5 : Mr. Ravi Prakash, C.G.C.
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Order No.03 Date: 08.01.2024
1. The present writ petition has been filed for issuance of
direction upon the respondents to consider the petitioner's
application dated 2nd December, 2022 (Annexure-3 to the writ
petition), whereby she had requested for child care leave for
the period from 6th to 20th December, 2022 (total 15 days).
Further prayer has been made for issuance of direction upon
the respondent-State to make arrangement/separate rooms
etc. at C.H.+2 High School Jhumri Telaiya so as to enable the
petitioner to breastfeed her son during working hours. The
petitioner has also prayed for issuance of direction upon the
respondent-Union of India to implement the ratified convention
in lieu of Maternity benefits for State of Jharkhand in terms of
mandate of Article 253 of Constitution of India read with
Schedule VII-Union List entry 14 or alternatively for issuance
of direction upon the respondent-State to come up with rules
for Child Care Leave since the said power is enshrined under
Schedule VII-Concurrent List-Entry 24.
2. Heard learned counsel for the parties.
3. So far as the prayer for grant of Child Care Leave is concerned,
on perusal of the relevant materials available on record,
particularly the petitioner's representation dated 2 nd
December, 2022, it appears that the petitioner had requested
the District Education Officer, Koderma for grant of child care
leave for the period from 6th to 20th December, 2022 (total 15
days), which according to her remained unresponded.
4. The petitioner herself has preferred the present writ petition
after delay of more than nine months from the date of filing of
said representation. She has also not assigned any cogent
reason as to why the said delay has been committed in filing
the present writ petition. Moreover, the petitioner has also not
brought on record any such circular/scheme/policy of the
Government of Jharkhand with respect to grant of child care
leave. As such, this court is not inclined to entertain the said
prayer of the petitioner.
5. So far as other prayers are concerned, this Court has perused
the judgment rendered by the Hon'ble Supreme Court in the
case of State of Jharkhand & Others Vs. Ashok
Kumar Dangi & Others, reported in (2011) 13 SCC
383, wherein it has been held as under: -
"17. The High Court has found that the Government
of Jharkhand, till date, had not framed any policy
regarding the number of posts to be filled by physical
trained candidates. How many posts of primary school
teachers be filled up by physical trained candidates, in
our opinion, is essentially a question of policy for the
State to decide. In framing of the policy, various inputs
are required and it is neither desirable nor advisable for
a court of law to direct or summarise the Government to
adopt a particular policy which it deems fit or proper. It
is well settled that the State Government must have
liberty and freedom in framing policy. Further, it also
cannot be denied that the courts are ill-equipped to deal
with competing claims and conflicting interests. Often,
the courts do not have the satisfactory and effective
means to decide which alternative, out of the many
competing ones, is the best in the circumstances of the
case.
19. As observed earlier, the High Court itself has
found that there is no policy in regard to the number of
posts of teachers to be filled up by the physical trained
candidates in the State of Jharkhand. The Act and the
Rules governing appointment in the State of Bihar do not
govern the appointment in the State of Jharkhand and
those have specifically been repealed by Rule 16 of the
Rules. Further, the need of the two States may not be
identical and it was therefore necessary for the State of
Jharkhand to frame a policy in this regard. In the face of
it, we are of the opinion that the High Court erred in
relying on the policy of the State of Bihar and directing
for filling up 5% posts of the primary school teachers by
physical trained candidates.
20. Now we revert to the decision of this Court
in CAG [(1986) 2 SCC 679] relied on by the respondents.
In the said case while considering the power under
Article 226 of the Constitution this Court has held that a
mandamus can be issued where the Government or a
public authority has failed to exercise or wrongly
exercised the discretion conferred upon it by a statute
or a rule or a policy decision. It has further been
observed that in order to compel the performance of a
public duty the Court may itself pass an order/direction.
21. Here, in the present case, neither any statute
nor rule nor the policy of the State of Jharkhand provide
for filling up certain percentage of the posts of primary
school teachers by candidates trained in physical
education. Any direction to the State Government to
make appointment of physical trained candidates as
primary school teachers do not flow from any of the
rules or the policy of the State and as such the direction
to make reservation in their favour would tantamount to
framing a policy and cannot be said to be failure to
exercise the discretion vested in the State Government."
6. In the aforesaid case, it has been held that framing of policy is
within the domain of the Government since various inputs are
required and it is neither desirable nor advisable for a court of
law to direct or summarise the Government to adopt a
particular policy which it deems fit or proper. It is well settled
that the courts are ill-equipped to deal with competing claims
and conflicting interests. It has further been held that a
mandamus can be issued where the Government or a public
authority has failed to exercise or wrongly exercised the
discretion conferred upon it by a statute or a rule or a policy
decision. No mandamus can be issued in absence of any
statute or a rule or a policy decision.
7. Since framing of policy/rule is within the domain of the State
Government, other prayers made by the petitioner in the
present writ petition also cannot be entertained by this Court.
8. Under the said circumstance, this Court is not inclined to
entertain the present writ petition and the same is, accordingly,
dismissed.
(Rajesh Shankar, J.)
Sanjay/
