Budhinath Kishku v. The State of Jharkhand & Ors
Case Details
1. W. P. (S). No. 3116 of 2013 [In the matter of an application under Article 226 of the Constitution of India] ........... Budhinath Kishku ... Petitioner Versus The State of Jharkhand & Ors. ... Respondents ............ For the Petitioner For Respondents
Legal Reasoning
: Mr. Uday Kant Thakur, Advocate : Mr. Rajesh Kumar, Advocate ............ P R E S E N T HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ............. By Court The petitioner has approached this Court seeking a direction upon the respondents for payment of monthly salary from 01.11.2010 to 31.12.2012. A further prayer for grant of benefit of retiral benefits, including monthly pension has also been made. 2. The brief facts of the case are that, the petitioner was appointed as Assistant Teacher on 23.02.1974 and he superannuated from service w.e.f. 31.12.2012. The petitioner attended a training course, pursuant to a direction by the District Superintendent of Education. The petitioner was granted Matric Trained Scale w.e.f. 27.01.1984. Since, the salary and the retiral benefits were not finalised by the respondents, the petitioner has approached this Court by filing the present writ petition. 3. A counter-affidavit has been filed on behalf of the respondents stating as under: 6. “That it is mostly humbly and respectfully stated that the petitioner was selected and initially appointment as temporary basis of the post of primary 2. teacher in established and managed by minority through advertisement no. 21/73, dated 19.12.1973, which is annexed as Annexure- 1 in this writ application. It is also stated that the advertisement no. 21/73 dated 19.12.1973 issued by Principal, Nand Kishore High School Raghunathpur, Godda. In this advertisement matric untrained qualification is mentioned for the selection for the post of teacher, which is totally- wrong and against the Government Circular. The answering respondent humbly submits that vide memo no. 3-0-30/38, sh. 3915 dated 15.11.1978, Sri Pranav Shankar Mukhopadhyay, Special Secretary, Government of Bihar had conveyed to all District Education Officer, all District Superintendent of Education, all School Inspector and all Sub- Divisional Educational Officer, that in primary school established and managed by minorities, the service of such untrained teacher, who have been appointed after 01.01.1971, can't be approved in any circumstances. It is relevant to states that the petitioner was appointed after 01.01.1971, through appointment letter vide memo no. 12/3/74-75, dated 06.04.1974, which is annexed as Annexure- 2 in this writ application. 7. That the answering respondent with most humbly and respectfully states that the proposal of approval of preposition statement of petitioner was turned down by Director, Primary Education, Patna, Bihar, Government of Bihar, on 15.06.1984. The proposal for approval of preposition statement was again forwarded by the then District, Superintendent of Education, Godda vide letter no. 1731 dated 05.08.2011 and was again turned down vide letter memo no.- 2843, dated 19.12.2011 addressed by Director, Primary Education, Jharkhand to Regional Deputy Director of Education, Santhal Pargana, Pramandal, Dumka. 8. That with regard to the statement made in paragraph-2 to the instant writ application under reply, it is stated that the averment made therein need no comment. 9. That with regard to the statement made in paragraph- 3 & 4 of the instant writ application under reply, it is stated that the same are matter of record but petitioner had been working against the Government Circular. It is humbly stated that the petitioner's prayer is based on grounds which not 3. maintainable in the eyes of law. 10. That with regard to the statements made in paragraph- 5, 6, 7 & 8 of the instant writ application under reply, it is stated that the first condition laid down in the advertisement is matric trained/ untrained qualification, that the matric untrained qualification for the selection for the post of primary teacher in minority based school is not valid and also the petitioner was appointed without having the qualification of teacher training at the time of appointment. It shows that the appointment was made without considering the Government Circular.” 4. Heard counsel for both the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that the statement made in the counter-affidavit that the proposition statement of the petitioner was turned down by the State of Bihar on 15.06.1984 and subsequently by the State of Jharkhand on 19.12.2011, have never been brought to the notice of the petitioner and now when the petitioner has superannuated from service, this fact has been disclosed in the counter-affidavit. The plea taken that since the service of the petitioner was not approved, the petitioner is not entitled for grant of retiral benefits, is therefore not justified. 6. On the other hand, Mr. Rajesh Kumar, the learned counsel appearing for the respondents has reiterated the stand taken in the counter-affidavit and stated that since the service of the petitioner was not approved by the then State of Bihar as well as by the State of Jharkhand, the petitioner is not entitled for grant of retiral benefits. He has further submitted that the petitioner illegally 4. continued in service after 1984. 7. On a perusal of the documents on record, I find that the service of the petitioner was approved by the District Education Officer and the petitioner was sent for training by the order of the District Superintendent of Education. Although the service of the petitioner was not approved, he continued in service for about 39 years and therefore, I am of the view that the petitioner is entitled for salary from the period 1.11.2010 to 31.12.2012. I find that since the rejection orders dated 15.06.1984 and 19.12.2011 are not under challenge and unless these orders are quashed and the service of the petitioner is approved, the prayer for grant of benefit of retiral benefits cannot be decided in the present proceeding. However, if the plea taken by the petitioner that the orders by which the proposition statement of the petitioner were not approved by the concerned authorities, were not brought to the notice of the petitioner is correct, it would be open to the petitioner to challenge those orders in a separate writ proceeding. 8.
Decision
This writ petition is disposed of at this stage with a direction to pay salary to the petitioner from 01.11.2010 to 31.12.2012. However, the petitioner would be at liberty to agitate his claim before the Secretary/ Additional Principal Secretary, Human Resource Development Department, Government of Jharkhand. JHARKHAND HIGH COURT, RANCHI Dated :– 19th November, 2013 R.K. / A.F.R. (Shree Chandrashekhar, J.)