Letters Patent Appeal No. 561 of 2013 · Patna High Court
Case Details
Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.561 of 2013 In Civil Writ Jurisdiction Case No. 364 of 2010 ====================================================== GAUTAM KUMAR THAKUR S/O LATE MOHANI MOHAN THAKUR R/O MOHALLA- SOUTH BHATTA, NEAR CHETNA BHAWAN, P.S. K. HAT, DISTT.- PURNEA .... .... APPELLANT/S VERSUS 1. THE STATE OF BIHAR THROUGH ITS SECRETARY, HUMAN (NOW DEPT. OF RESOURCES DEVELOPMENT DEPARTMENT EDUCATION), GOVT. OF BIHAR, PATNA 2. THE SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT (NOW DEPT. OF EDUCATION), GOVT. OF BIHAR, PATNA 3. THE SPECIAL SECRETARY-CUM-DIRECTOR, PRIMARY EDUCATION, PATNA, BIHAR 4. THE SPECIAL DIRECTOR, PRIMARY EDUCATION, PATNA, BIHAR 5. THE DEPUTY DIRECTOR, PRIMARY EDUCATION, PATNA, BIHAR 6. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PURNEA 7. THE DISTRICT SUPERINTENDENT OF EDUCATION (NOW DISTRICT PROGRAMME OFFICER), PURNEA 8. THE AREA EDUCATION OFFICER, PURNEA 9. THE HEAD MASTER, BHATTA MIDDLE SCHOOL (BENGALI), PURNEA 10. THE DISTRICT MAGISTRATE-CUM-COLLECTOR, PURNEA 11. THE MANAGING COMMITTEE, BHATTA MIDDLE SCHOOL (BENGALI), PURNEA THROUGH ITS SECRETARY 12. THE SECRETARY, MANAGING COMMITTEE, BHATTA MIDDLE SCHOOL (BENGALI), PURNEA .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Rajendra Prasad Singh, Sr.Adv. Mr, Navjot Yeshu,Adv. Mr. Mukesh Kumar Singh, Adv. For the Respondent/s : Mr. Dhurendra Kumar, AC to SC-16 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 09-10-2013
Legal Reasoning
Heard counsel for the appellant and the State. Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 2 The present appeal arises from order dated 18.2.2013 dismissing CWJC No. 364 of 2010. The learned Single Judge held that the appointment of the petitioner having been made by the Minority Educational Institution without following any procedures prescribed by the State Government, it was under no obligation to approve his services and pay salary from Government coffers. The order under appeal does not notice and deal with the facts of the case. We consider it necessary to set out the facts first for a proper appreciation by the parties of our understanding of the case and the conclusions that we propose to arrive at. On 2.5.1987 the Bhatta Middle School (Bengali), Purnea was declared a minority educational institution under Articles 29 and 30 of the Constitution. The institution had the fundamental right to administer and which includes the right to make appointments. But, being an aided institution, while making appointments it had to comply with the regulatory conditions prescribed by the by the Education Department from time to time subject to it not violating its rights to establish and administer. The appellant was appointed on 13.5.1989 in the Matric Trained scale on a vacant post by the Managing Committee of the School, subject to approval by the District Superintendent of Education, Purnea, after which salary in the approved scale would be paid to him. A Government Notification, in the Education Department, dated 5.3.1983 provided that if after advertisement trained candidates were not available then untrained candidates could be considered for Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 3 appointment in the disciplines of Science, Sanskrit and Urdu. Keeping in mind the policy for reservation, if trained candidates in Scheduled Castes and Scheduled Tribe were not available then untrained candidates from those categories may also be considered. The appellant was appointed on 13.5.1989 in the Matric trained scale in the discipline of Science as untrained. The Institution forwarded his candidature for approval to the District Superintendent of Education, Purnea. The authority granted approval to his appointment on 12.6.1989 referring to Department Letter no. 1626 dated 21.7.1983. The appellant started discharge of duties and received salary till 1999. The issue arose for re-fixation of pay scale in view of the 5th Pay Revision Committee Report. The Managing Committee of the School on 27.9.2003 wrote to the authorities that despite approval granted by the District Superintendent of Education salary of teachers whose appointment had been approved were being withheld without justification. A show cause notice was issued to the appellant on 30.3.2006 by the District Superintendent of Education, Purnea. It stated that his appointment had been examined in light of departmental letters dated 4.3.1993 and 2.5.2005. It had been found that his appointment was irregularly made. He was not a trained teacher on the date of appointment. No advertisement had been published before appointment and neither had the rules of reservation been followed. He was asked to show cause why the approval of his appointment be not cancelled. The appellant replied that it was unfair to raise the issue 17 Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 4 years later and that too after approval of his appointment by the District Superintendent of Education himself. He had been appointed by the Managing Committee after advertisement and selection process. On 21.7.2006 it was ordered that his appointment as an untrained teacher was contrary to Government Instruction dated 31.12.1982 and 21.7.1983. Consequently the approval of his appointment dated 12.6.1989 was cancelled. In in CWJC 10350 of 2006 disposed with analogous cases no counter affidavit was filed. Directions were therefore given to file a representation. It came to be rejected on 5.7.2008 reiterating the earlier decision. Learned Senior counsel for the appellant submitted that appointment of an untrained teacher, if a trained teacher was not available, inter alia in the discipline of science, was permitted under government notification dated 5.3.1983. The appellants appointment was examined by the District Superintendent of Education, Purnea, and after satisfaction was approved on 12.6.1989. The show cause notice issued to the appellant on 30.3. 2006 made no reference to the approval of appointment dated 12. 6.1989. If the respondents were of the opinion that the approval had been granted erroneously, it was required to be mentioned in the show cause notice along with the grounds on which the respondents opined that approval had been wrongly granted. Both the impugned orders dated 21.7.2006 and 5.7.2008 do not mention why and how the approval to appointment dated 12.6.1989 was erroneous. The order approving appointment and subsequently canceling it have both been passed by the District Superintendent of Education, Purnea. It Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 5 is not open for the District Superintendent of Education to challenge his own orders without discussing and stating what was the error or omission committed by him when he approved the appointment. In the facts of the case, raking up the appointment of the appellant after 17 long years does not appeal to common sense or logic especially when the District Superintendent of Education, Purnea, is the author of both and yet refuses to spell out the nature of illegality in the order dated 12.6.1989. The decision making process was therefore fundamentally flawed and it vitiates the impugned orders as arbitrary. Counsel for the State supported the order of termination. It was contended that if the appointment was made contrary to the regulatory laid down by the State government and the minority institution was receiving government aid, the District Superintendent of Education justifiably opined that the appellant could not be paid salary being an illegal appointee. We have considered the submissions on behalf of the parties. The appointment of the appellant was approved by the District Superintendent of Education, Purnea, on 12.6.1989. A presumption would necessarily arise that approval was granted to the appointment after application of mind and due consideration of all aspects. If the District Superintendent of Education was of the opinion that approval had been granted contrary to the law, mere passage of time may not be sufficient to lend validity to an invalid appointment. But, if long 17 years had passed since approval was granted, prudence, and reasonableness and fairness required that the show cause notice should have spelled Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 6 out why the District Superintendent of Education was of the opinion that he had erroneously granted approval. The show cause notice questioned why approval should not be canceled. Unless the appellant was first told the reasons why the authorities were of the opinion that approval was granted erroneously, the giving of a show cause notice was an empty ritualistic formality. It makes no reference whatsoever to the approval dated 12.6.1989. The government notification dated 5.3.1983 provides for appointment of untrained teachers inter-alia in the discipline of Science if trained teachers were not available. It is not the case of the respondents that the appellant was appointed ignoring the candidature of a trained candidate. The show cause notice reference to a government instructions dated 4.3.1993 and 2.5.2005. If appointment of untrained teachers was completely prohibited subsequently by instruction dated 4.3.1993, it could not invalidate the appointment of the appellant made on 12.6.1989 under the notification dated 5.3.1983. Significantly the counter affidavit did not deny the instruction dated 5.3.1983. The order of termination dated 21.7.2006 accepts the cause shown that he was appointed after advertisement as it makes no reference to the issue. The institution having a minority character, the question of the government imposing its reservation policy interfering with the fundamental rights of a minority institution to establish and administer under Articles 29 and 30 of the Constitution simply does not arise. The impugned order therefore also does not refer to the same. In (2010) 8 SCC 49 [Sindhi Education Society v. Govt. (NCT of Delhi)] it has been observed Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 7 as follows :- minority educational institutions from the power of “83. Article 15(5) of the Constitution excludes the the State to make any provision by law for the advancement of any socially or educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission including private educational institutions whether aided or unaided. This article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the article. But, the framers of the Constitution have educational excluded minority specifically to educational institutions institutions from the operation of this clause.” Having confined the reason for cancellation of the approval in order dated 21.7.2006 to the untrained the status of the appellant at the time of appointment, the order dated 5.7.2008 seeks to go back to the grounds mentioned in the show cause notice dated 30.3.2006. This to our mind is an ambivalent and vacillating approach of the respondents which leaves us satisfied that there was in fact no infirmity in the approval to his appointment granted on 12.6.1989. The respondents now appear to be fishing for grounds to declare as illegal what was valid when done. The counter affidavit filed to the writ petition, also does not State the nature of illegality committed by the District Superintendent of Education, Purnea, when he granted approval to the appointment on 12. 6. 1989. The orders dated 21. 7. 2006, 5. 7. 2008 and the order under appeal dated 18.2.2013 are all held to be unsustainable and are accordingly set aside. The appellant is held entitled to arrears of salary and current salary subject to due discharge of duties. The legitimate payments must be made within a maximum period of 8 weeks from the Patna High Court LPA No.561 of 2013 (2) dt.09-10-2013 8 date of receipt and/or presentation of a copy of this order before the D District Superintendent of Education, Purnea.
Decision
The appeal is allowed. Chandran (Navin Sinha, J) (Vikash Jain, J)