Jharkhand High Court
Isidore Dang vs The State Of Jharkhand on 12 January, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1786 of 2018
Isidore Dang ..... Petitioner
Versus
1.The State of Jharkhand.
2.Secretary, Human Resources Development Department,
Project Building Dhurwa, P.O. & P.S. Dhurwa, District-
Ranchi.
3.Director(Primary Education) at Project Building, P.O. & P.S.
Dhurwa, District-Ranchi.
4.District Superintendent of Education, at Gumla P.O. & P.S.
District-Gumla. ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Ms. Swati Shalini, Adv.
For the Respondents : Mr. Shubham Mishra, A.C. to
S.C.(Mines)II
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07/Dated: 12th January, 2024
Heard learned counsel for the parties.
2. The instant writ application has been preferred by the
petitioner praying for a direction upon the respondent-
authorities for fixation of his pay scale and further direction
upon the concerned respondents for payment of arrears of
salary of the petitioner due from the date of his joining as on
03.09.2001.
3. At the outset learned counsel for the petitioner, Ms.
Swati Shalini submits that the issue involved in this writ
application has been decided by the coordinate Bench of this
Court; wherein it has been held that the presence of
Government representative is not mandatory; rather
Government before giving approval has to ensure itself that
the proper procedure has been followed.
4. Learned counsel further submits that his appointment
has been done after a proper advertisement and the only
ground for not giving the salary and the pay scale is that the
Government representative was not there which is not in
accordance with law and totally against the ratio decided in
W.P.(S) No. 856 of 2014, as such this writ application may be
allowed.
5. Learned counsel for the respondent fairly submits that
the issue has been decided that the presence of the
Government representative is not mandatory, as such the
instant application may be disposed of by giving direction to
the respondent to decide the claim of the petitioner in view of
the order passed in W.P.(S) No. 856 of 2014.
6. Having heard learned counsel for the parties and after
going through the averments made in respective affidavits and
the documents annexed therein and also the order passed in
W.P.(S) No. 856 of 2014, it appears that the only ground for
denying the claim of salary to this petitioner is that the
Government representative was not present at the time of
appointment. This issue has been dealt by the coordinate
Bench of this court in W.P.(S) No. 876 of 2014. Relevant
portion of the same is quoted hereinbelow:-
"In the present case, the only dispute is the presence of government
representative. The circular dated 04.03.1993 which is relevant, is quoted
hereinbelow:-
ßfo|ky; izca/k lfefr ds }kjk fjDr inksa dks foKkfir djkdj dsoy izf'kf{kr mEehnokjksa ls
vkosnu&i= izkIr fd;k tk,A lfefr esa fo|ky; ds fu;a=h inkf/kdkjh ;kuh {ks=h; f'k{kk
inkf/kdkjh@iz[kaM f'k{kk izlkj inkf/kdkjh dks f'k{kk foHkkx ds izfrfuf/k ds :i esa vo'; j[kk
tk,A
es/kk lwph rS;kj dh tk, rFkk ojh;rk ds dze ls gh fu;qfDr dh tk,A fu;qfDr ds le; vkj{k.k
fu;eksa dk Hkh vuqikyu fd;k tk,A
fu;qDr f'k{kdksa dh lsok vuqeksnu ds laca/k esa foHkkxh; vf/klwpuk la[;k 2501 fnukad 31-12-82
rFkk foHkkxh; i=kad 1626 fnukad 21-7-83 esa fufgr vkns'k dk;Zjr jgsaxsA
f'k{kdksa ds lsok vuqeksnuksijkUr fofgr&izi= esa osru fu/kkZj.k l{ke ftyk f'k{kk v/kh{kd }kjk
djus ds mijkUr funs'kd ¼izk0 f'k0½ dh lgefr izkIr dj gh Hkqxrku izkjaHk dh tk,xhAß"
This circular has been further clarified vide resolution dated
28.02.2011. Clause "Ka" is relevant which is quoted hereinbelow:-
ß¼d½ foHkkxh; i=kad 709 fnukad 04-03-93 ds vuqlkj fo|ky; izca/k lfefr ds }kjk fjDr inksa
dks foKkfir djkdj fu;qfDr djus dk izko/kku vafdr fd;k x;k gSA i= esa ;g Hkh mYys[k gS fd
fo|ky; ds izca/k lfefr }kjk fu;qfDr gksus ij fu;qfDr dk vuqeksnu ftyk f'k{kk v/kh{kd }kjk
fd;k tk;sxk rFkk osru fu/kkZj.k izi= ij funs'kd] izkFkfed f'k{kk dh lgefr ds mijkUr gh
osru Hkqxrku izkjaHk fd;k tk;sxkAÞ"
From mere perusal of the above circular, it is evident that the
presence of the representative of the State government is not mandatory,
rather the government before giving approval has to ensure itself that the
proper procedure has been followed i.e. proper advertisement was there
and the person selected in fair manner and is eligible for the post.
In the fact of the present case, it has been pleaded by the
petitioner referring to the letter of the D.E.O. (Annexure-13) dated
19.09.2011 wherein it has been stated by the District Education Officer
that one Smt. Babita Devi has been deputed for the said purpose but she
has neither produced the authorisation letter nor she has signed the
proceeding of the selection process. The said fact has not been dealt in
the impugned order but it has been dealt in the counter affidavit.
In counter affidavit a stand has been taken that Babita Devi was
not authorised by D.E.O. but nothing has been said about letter dated
19.09.2011 issued by D.E.O. Further, it has been stated that Babita Devi
is not a teacher and as per rule, only Range Education Officer can be
authorised to remain present.
The above submission of the State is not acceptable for the reason
that the service of the petitioner has been approved by the D.E.O. which
has been authorised to supervise the entire selection process. No lacunae
has been pointed out in the selection process save and accept the non-
presence of the representative of the State.
The joining of the petitioner has been accepted by the institution
approved by the D.E.O. and salary has also been released. Acceptance of
the joining is 02.04.2007 and the salary has been paid till February,
2010. Para-7 of the Judgment of the Apex Court, reported in (2004) 6 SCC
224 in the case of Brahmo Samaj Education Society & Ors. vs. State of
W.B. and Ors. is quoted hereinbelow:-
"7. But that control cannot extend to the day-to-day administration
of the institution. It is categorically stated in T.M.A. Pai (SCC at p.
551, para 72) that the State can regulate the method of selection
and appointment of teachers after prescribing requisite qualification
for the same. Independence for the selection of teachers among the
qualified candidates is fundamental to the maintenance of the
academic and administrative autonomy of an aided institution. The
State can very well provide the basic qualification for teachers.
Under the university Grants Commission Act, 1956, the University
Grants Commission (UGC) had laid down qualifications to a
teaching post in a university by passing Regulations. As per these
Regulations UGC conducts National Eligibility Test (NET) for
determining teaching eligibility of candidates. UGC has also
authorised accredited States to conduct State-Level Eligibility Test
(SLET). Only a person who has qualified NET or SLET will be
eligible for appointment as a teacher in an aided institution. This is
the required basic qualification for a teacher. The petitioners' right
to administer includes the right to appoint teachers of their choice
among the NET-/SLET qualified candidates."
From mere perusal of the above mandate of the Apex Court, it is
clear that the State Government is only competent to see the procedure
and eligibility of the candidates. Suitability of the candidate cannot be
judged by the State Government. Suitability of candidate has to be
adjudicated and judged by the Managing Committee. Thus the presence
of the representative of the State is only for the purpose of seeing the
procedural factor and not the suitability of the candidate.
In the present case, there is no averment or plea that any
procedural requirement has been infracted rather advertisement and the
eligibility of the petitioner is not in question. Suitability of the candidate
cannot be questioned or looked into by the State Government Authority.
Thus, the mere allegation of non-presence of State representative, the
selection process cannot be declared illegal.
In view of above discussion and the judicial pronouncement, this
Court finds that impugned order dated 29.12.2012 is illegal and contrary
to the law and accordingly the same is, hereby, set aside."
7. In view of the submissions made by learned counsel for
the parties and the order referred to herein above, the instant
writ application is hereby disposed of by directing the
respondent no.3 to pass an order in favour of the petitioner in
view of the order passed by the Coordinate Bench of this
Court and the amount which would be found payable shall be
paid to him forthwith.
8. It goes without saying that the entire exercise shall be
completed within a period of 16 weeks from the date of receipt
of copy of this order.
9. Accordingly, this application stands disposed of.
(Deepak Roshan, J.)
Amardeep/
