Brother Domnic Surin vs The State Of Jharkhand Through The ...
2024 Latest Caselaw 8682 Jhar

Jharkhand High Court

Brother Domnic Surin vs The State Of Jharkhand Through The ... on 2 September, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 5759 of 2023
          Brother Domnic Surin, aged about 47 years, son of Shri
          Zephrenius Surin, resident of Assisi High School Campus,
          Samlong, P.O. & P.S.-Namkum, Town and District-
          Ranchi.
                                                   ...Petitioner
                                    Versus
        1. The State of Jharkhand through the Secretary/Principal
          Secretary, School Education and Literacy Department,
          having office at Project Building, Dhurwa, P.O. & P.S.-
          Dhurwa, Town & District- Ranchi.

        2. The Director Secondary Education, having office at
          Project Building, Dhurwa, P.O. & P.S.- Dhurwa, Town &
          District- Ranchi.

        3. The District Education Officer, Ranchi, having office at
          near Kutchery, P.O.- G.P.O., P.S.-Kotwali, Town and
          District- Ranchi.

        4. Assisi High School, Samlong, through its Secretary,
          having office at Samlong, P.O. & P.S.-Namkum, Town and
          District-Ranchi
                                                   .....Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : M/s. Manoj Tandon, Siddharth Ranjan, Neha Bhardwaj, Adamya Kerketta, , Advocates For the Resp.-State : Mr. Jayant Franklin Toppo, G.A.-V Mr. Neil Abhijit Toppo, A.C to G.A.-V Mr. Amit Raj Kisku, A.C to G.A.-V

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04/02.09.2024 Heard learned counsel for the parties.

2. The instant application has been preferred by the petitioner praying for a direction upon the respondent authorities; especially respondent no. 2 to approve the services of the petitioner, who was appointed by letter of appointment dated 6th July, 2013 and joined on the post of Assistant Teacher in the Assisi High School, Samlong

Ranchi (A Religious Minority School) in the subject English with effect from 01.08.2013.

The petitioner has further prayed for payment of salary to him with effect from 01.08.2013 as the same has not been paid.

3. The brief fact of the case is that the petitioner did matriculation in the year 1997 and Intermediate in the year 1999. He also did his graduation from Bangalore University, Karnataka with subject English. Thereafter, he completed B.Ed. examination in the year 2013. Subsequently, the petitioner was appointed vide letter dated 6th July, 2013 in the aforesaid Minority School.

4. The case of the petitioner is that though the appointment of the petitioner was done by the management of the school, but the same was to be approved by the Government. On 21.07.2013, the appointment of the petitioner was approved by the Management Committee and on 24.07.2013 the Secretary of the school approved the appointment of this petitioner with effect from 01.08.2013 and on 25.07.2013 he was issued appointment letter and accordingly he joined his service as Headmaster in Assisi High School, Samlong, Ranchi.

On 14.08.2014, the matter of approval was placed before the Director, Secondary Education. Thereafter, a question was raised that the recommendation letter for approval is not signed by the District Education Officer. Immediately, the District Education Officer vide letter dated 12.09.2014 put signature on the check slip and forwarded the same to the Director, Secondary Education for approval.

During all these period, the petitioner continued to work as Assistant Teacher in the concerned school; however after a gap of two and half years the matter was again placed before the Director, Secondary Education, but

this time it was pointed out by the office of the Director, Secondary Education that the appointment of this petitioner was not against the sanctioned post.

5. At this stage, it is pertinent to mention here that when the case/file of the petitioner was placed before the Director, Secondary Education, his file should have been checked in total; however, as it appears from the second query which was made after two and half years that the same was not done at the 1st stage itself and a further query was made regarding the sanctioned post.

Thereafter, immediately the Secretary of the said school wrote a letter to the Director, Secondary Education with giving details and contending that this petitioner was appointed against the sanctioned post. Even, the District Education Officer informed the office of the Director, Secondary Education that there is total 9 posts in the school as against the same, there are three posts of language sanctioned by the Government.

When the approval of the petitioner was not done even after a lapse of 4-5 years, on 01.10.2021, the Secretary of the school wrote a letter to the District Education Office, Ranchi with a request to place the matter of approval of this petitioner before the competent authority; however when the case of the petitioner was not approved he was compelled to move this Court by filing the instant application.

6. A Counter affidavit has been filed, in which a ground has been taken by the respondent no. 2 that the petitioner studied English as a subsidiary subject and his main paper was Economics and Political Science and for the post of English subject, the petitioner should have cleared the B.A Examination with English as a main subject.

7. In reply to the specific stand by the respondents, the petitioner filed a rejoinder annexing the Notification no. 1625 dated 14.06.2008 (Annexure-16) and submits that as per Rule which was prevalent on the date of appointment i.e., Jharkhand Nationalized Secondary School (Condition of Service) (Amendment) Rule, 2008 (hereinafter to be referred as the Rules); wherein at Rule 4(iii)(ka) stipulates that a candidate must secure 45% in Graduation i.e., Arts, Science and Commerce in the Second Division with concerned subject and admittedly the petitioner has secured 56% marks.

Learned counsel for the petitioner has relied upon this notification which was prevalent on the date of appointment.

8. Learned counsel for the respondents relied upon the counter affidavit and submits that since English was not the main subject; as such his case was not considered and this application does not require any interference.

9. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, it appears that the petitioner was appointed as Assistant Teacher in Assisi High School, Samlong, Ranchi and joined his service on 01.08.2013. Thereafter, the matter of approval was placed to the office of Director, Secondary Education on 14.08.2014 itself. Subsequently, a query was raised by the said office that the recommendation letter does not reflect the signature of District Education Officer Thereafter, immediately the District Education Officer vide letter dated 12.09.2014 put signature on the check slip and forwarded the same to the Director, Secondary Education.

Interestingly, thereafter the matter was somehow or other kept in abeyance and on 08.03.2017 the matter was again placed before the Director, Secondary Education.

It has not been clarified by the respondents as to why the delay of around two and half years was caused; however in 2017, again a query was made that the post was not sanctioned and the petitioner cannot be appointed on the sanctioned post.

In reply to the aforesaid query immediately within two weeks the Secretary of the School wrote a letter to the Director, Secondary Education by giving details and contending therein that the petitioner was appointed against the sanctioned post. Even the District Education Officer informed to the Secretary of the school, in question, to the effect that there are total 9 posts in the school and as against the same there are three post of language which is sanctioned by the Government.

Again, the matter was kept in abeyance for no reasons and thereafter about 4 years, a reminder was made by the Secretary of the school to the District Education Officer with a request to place the matter for approval of this petitioner; however, the same was not approved till date.

10. From the record, it appears that a ground has been taken by the respondents in the counter affidavit that since the petitioner was not having English as main subject; accordingly, he cannot be appointed for English subject.

In this regard, they have also relied upon a judgment passed by the Division Bench of this Court in L.P.A. No. 403 of 2016 [Deokant Sriniwas & Ors Vs. The State of Jharkhand & Ors] (Annexure-B to the counter affidavit).

11. After going through the aforesaid judgment, it transpires that the Division Bench of this Court in para-5 & 6 has specifically stated that in the advertisement there was a condition no. (kha)(i), which stipulates that the General Category Candidate must have obtained 45% of

marks in the concerned subject and for Scheduled Caste Category, the candidate is required to obtain 40 marks.

For brevity para-5 & 6 of the said judgment are quoted hereinbelow:

5. Looking to the requirement of the advertisement, which is at Annexure-1, to the memo of this Letters Patent Appeal dated 12th October, 2011, and especially the Condition no.(kha) (i), it requires that the general category candidate must have obtained 45% of marks in the concerned subject and for scheduled caste category, candidate is required 40% marks in the concerned subject, for which an application has been preferred for being appointed as an Assistant Teacher.

6. Thus, it appears from the advertisement that if the candidate is applying for the post of Hindi subject, he should have cleared B.A. examination with Hindi subject as a main subject. "in the concerned subject" means a subject for which an application is preferred for being appointed as Assistant Teacher, a candidate must have cleared B.A. Examination or Graduation examination with main subject for which an application is preferred.

From the aforesaid judgment, it appears that the Division Bench relied upon advertisement; however the Rules (Annexure-16) was not considered in the said judgment; accordingly the same is not applicable in the instant case.

12. In the instant case, the only criteria as per Rule 4(iii) (ka) stipulates that a candidate must secure more than 45% in Graduation with the concerned subject. As aforesaid, this Rule has not been considered or deliberated by the Division Bench of this Court. It is further relevant to opine that the order passed by Division Bench was pursuant to an advertisement; however, the appointment of the petitioner is in minority school as "Brother" which was not pursuant to any advertisement; rather his appointment was subject to the approval of the Director, Secondary Education; as such this Court is having no hesitation in holding that the case of the petitioner will be governed by the notification no. 1625 dated 14.06.2008. It goes without saying that the relevant period of appointment is 2013; accordingly, the petitioner would be entitled to be confirmed in view of

this notification; inasmuch as, the said notification categorically stipulates in Rule 4(iii)(ka) that the candidate must secure 45% in graduation i.e., Arts, Science and Commerce with the concerned subject.

In the instant case, the petitioner was having English as a subject and having much more marks then the required percentage.

13. The other aspect of the case is that the petitioner was appointed in the year 2013. Though the first query was made by the respondent in the year 2014, but thereafter the office of Director, Secondary Education slept over the matter and in the year 2017 after a gap of two and half years again made a query which was also rectified and clarified by the school and the District Education Officer and thereafter the respondents for the reason best known to them slept over the matter for about 5 years and now in the counter affidavit it has stated that the English subject was a subsidiary language and not main subject.

Had the said stand of the respondents taken in the counter affidavit would have been communicated to the petitioner in 2013, the petitioner might not have vested his entire career of 10 years in the said school in anticipation of approval.

14. Even otherwise, in the last ten years, the petitioner has also gained experience in his field. In this regard it is profitable to refer the judgment passed in the case of Bhagwati Prasad v. Delhi State Mineral Development Corpn., (1990) 1 SCC 361, wherein para-6, it has been held as under:

6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in

the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period.

Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the seniormost workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rs. 10,000 in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs". Emphasis Supplied

12. Having regard to the aforesaid discussion, the instant application stands allowed and the respondents are directed to issue necessary order with regard to approval of this petitioner and all consequently benefit may be extended to him. The entire exercise be completed within a period of twelve weeks from the date of receipt/production of copy of this order.

(Deepak Roshan, J.) Jk AFR