The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 903 of 2021 ------- Jayanti Kumari, Wife of Dhirendra Kumar Singh, permanent resident of Village & P.O.-Lahthan, P.S. Agiyaon Bazar, District-Bhojpur (Bihar), at present residing at C/o Sumeshar Lal, Railway Colony, Redma, P.O. & P.S. Daltonganj, District-Palamau. ..… Petitioner Versus 1. The State of Jharkhand through the Secretary, School Education & Literacy Department, having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa District Ranchi. 2. The Director (Secondary School), School Education & Literacy Department, Government of Jharkhand, having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa, District - Ranchi. 3. The Regional Deputy Director of Education, Palamau Division, Palamau, P.O. & P.S. Daltongaj, District- Palamau 4. The District Education Officer, Palamau, P.O. & P.S. Daltongaj, District - Palamau. ..… Respondents With W.P.(S) No. 881 of 2021 ------- Dharmshila Kumari, Daughter of Sri Sidh Nath Dubey, permanent resident of village & P.O.-Semri, P.S. Dawat, District-Rohtas, at present resident of C/o Badrinath Agrawal, Purani Income Tax Road, Redma Town No.2, P.O. & P.S. Daltonganj, District-Palamau. Versus ..… Petitioner 1. The State of Jharkhand through the Secretary, School Education & Literacy Department, having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa District Ranchi. 2. The Director (Secondary School), School Education & Literacy Department, Government of Jharkhand, having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa, District - Ranchi. 3. The Regional Deputy Director of Education, Palamau 1 Division, Palamau, P.O. & P.S. Daltongaj, District- Palamau 4. The District Education Officer, Palamau, P.O. & P.S. Daltongaj, District - Palamau. ..… Respondents With W.P.(S) No. 904 of 2021 ------- Janardan Singh, son of Fatte Bahadur Singh, resident of village-Jigni, P.O-Manihari, P.S.-Bhabhua, District- ..… Petitioner Kaimur. Versus 1. The State of Jharkhand through the Secretary, School Education & Literacy Department, having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa, District Ranchi. 2. The Director (Secondary School), School Education & Literacy Department, Government of Jharkhand, having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa, District - Ranchi. 3. The Regional Deputy Director of Education, Palamau Division, Palamau, P.O. & P.S. Daltongaj, District- Palamau 4. The District Education Officer, Palamau, P.O. & P.S. Daltongaj, District - Palamau. ..… Respondents ------- CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN ------- : Mr. Rajiv Sinha, Adv Ms. Sreesha Sinha, Adv. For the Petitioner (In all the writ applications)
Legal Reasoning
For the Respondents : Mr. Divyam, A.C. to G.P.-I ------- 04/06.08.2024 Heard learned counsel for the parties. 2. Since all these writ applications are inter-connected and similar issue is involved in all these writ applications they are disposed by this common order. 3. The petitioners in all these writ applications have prayed for quashing of the Office Order as contained in Memo Nos. 1792, 1793 & 1794, respectively dated 2 19.12.2019 (Annexure-18) rejecting the claim of the petitioner for arrears of salary and have further prayed for a direction upon the respondent authorities to pay salary to the respective petitioners for the period from recognition of their services w.e.f. 01.01.1989 to December 2017 and from May 2018 till date and also for a direction upon the respondent authorities to give suitable posting to the petitioners. 4. These cases have a checkered history. The local people of Patan Block had established a Girls High School at Block Headquarter and the same was recognized as Project Girls High School w.e.f. 1984-85. The petitioners have been appointed on 22.12.1988 as Assistant Teachers. Earlier, the petitioners have moved before this Court for recognition of their services and for payment of the remuneration/salary in W.P.(S) No. 2365/2005, which was disposed of vide order dated 21.6.2005 with a direction upon the Respondent No. 4 to look into the matter and send the status report. In pursuance of the order passed by the court, the Respondent No. 4 had submitted his report contained in memo no. 1702 dated 18.5.2006 stating inter alia that the petitioners have been working since 1989-90 as Assistant Teacher. The petitioners have also moved before this Court as against the negative marks awarded to them in the recommendation made by the Three-Member Committee in W.P.(S) No. 5129 of 2011 and the said writ application was disposed of vide order dated 08.02.2013 with a liberty to the petitioners to represent before the Director- Secondary 3 Education who in turn was directed to pass reasoned order. In pursuance to the order passed by this Court, hearing in the matter commenced and an enquiry report as contained in Memo No. 537 dated 20.08.2013 was submitted by the Regional Deputy Director; wherein it was admitted that there had been dispute amongst the Managing Committee and hence, a decision may be taken with respect to approval of the services of the petitioners. Another enquiry was made in relation to recognition of the services of the petitioners by the respondent- District Education Officer and vide order contained in memo no. 3344 dated 17.12.2015 passed by the Respondent-Director it has been found that the services of the petitioners are not fit for approval. 5. The petitioners thereafter filed an application for review of the order dated 17.12.2015. The Respondent Regional Deputy Director of Education, Palamau while taking into account the continuous services of the petitioners, vide order contained in Memo No. 802 dated 11.4.2016; conducted another enquiry and found the petitioners has been working since 1988 and thereby recommended for recognition of their services w.e.f. 1.1.1989. Thereafter, the petitioners appeared before the District Education Officer and submitted their educational records etc. for verification. Since the number of students in the Government Bakshi High School, Palamau, Government +2 High School, Hussainabad, Project High School, Palamau, respectively have been more than the sanctioned ratio, it had been decided by the then District Education Officer in the 4 interest of students to depute the petitioners vide order dated 10.03.2017, 08.07.2017 & 23.09.2017 in the aforesaid schools. The petitioners in compliance to the order of their deputation have also submitted their joining at the said place and have been discharging their duties. In the meanwhile, another enquiry was conducted by the District Education Officer, Palamau in relation to appointment of the petitioners and their educational qualification, which has been found to be proper as may be evident from the enquiry report dated 08.07.2017. 6. Thereafter, a complaint dated 15.12.2017 was made before the Hon’ble Chief Minister in relation to the deputation of the petitioners beyond the strength of the school. Pursuant to the complaint, another enquiry was conducted by the District Education Officer and vide letter No. 957 dated 15.07.2018, the Enquiry Report was forwarded to the Additional Secretary of the Department of Secondary Education. Thereafter, the petitioners were show caused in relation to their appointment and they replied to the District Education Officer that they have been working and discharging their duties since 1989 and the same has been verified on number of occasions and even the Director, Secondary education had also recognized their services. The petitioners on the other hand moved before this Court vide W.P.(S) No. 1417 of 2019 challenging the order dated 11.12.2018 in relation to their deputation and this
Decision
Court vide order dated 28.09.2019 has disposed of the writ application with a direction upon the authorities to 5 consider the writ as a representation and take a decision in accordance with law. Thereafter, the Respondent Director had passed order dated 19.12.2019 rejecting the claim of the petitioners for salary on the ground that as against the order of approval of services dated 11.04.2016, an appeal has been filed before the Principal Secretary and there are no students in the said school and hence, they are not entitled for arrears of salary. It has further been mentioned that in the subject Sanskrit there had been one teacher namely Sri Brajmohan Mishra whose services have already been approved. 7. Counter Affidavit has been filed justifying the order dated 19.12.2019 and it has been brought to the notice that in the same building there are two schools operating and hence the very question of school and students has been raised. The remarks of the “Three Member Committee” have also been highlighted with respect to the school and the petitioners. The counter affidavit also refers to enquiries being made in this regard and an appeal which has been preferred before the Secretary as against the decision of the Director. 8. Having heard learned counsel for the parties and after going through the records it appears that Project Schools were established in the State of Bihar under a scheme of 1981, and large number of schools in 1st phase and 2nd phase were established by the assistance of local people. Thereafter, several writ petitions were filed before the Patna High Court being Project Ucch Vidhyalaya Shikshak Sangh vs. State of Bihar reported in (2000) 1 PLJR 6 287 in relation to establishment of the schools and the staffing patterns. The matter had travelled up to the Hon’ble Supreme Court vide State of Bihar vs. Project Ucch Vidhyalaya Shikshak Sangh reported in (2006) 2 SCC 545 and a committee was constituted to scrutinize the claims of the schools and/or the teaching and non- teaching staffs. Pursuant thereto; the Alam Committee had submitted its report. 9. In the present cases also, there had been enquiries at different levels in relation to the existence of the school, working of the petitioners on sanctioned vacant post and there is serious factual dispute which is not within the domain of this Court to ascertain. In the case of "Project Uchcha Vidyalaya (supra)" the Hon’ble Supreme Court held as under: “75. Even if there is no dispute as regards number of schools, in view of the stand taken by the State and particularly in view of the fact that it appears from the records that recognition of the school, if any, had wrongly been granted to some schools where buildings were also not completed or the process of selection was also not over, it may be necessary for the State to have a further look in the matter. 76. It is furthermore necessary to scrutinise as to whether the teaching and non-teaching staff appointed for the said purpose fulfil the criteria in terms of the policy decision of the State or not. Their qualifications laid down under other relevant statutes for the purpose of obtaining permission must also be scrutinised. 77. We do not find any merit in the contention raised by the learned counsel appearing on behalf of the respondents that the principle of equitable estoppel would apply against the State of Bihar. It is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised. The right of the State to raise a question as regards its actions being invalid under the constitutional scheme of India is now well recognised. If by reason of a constitutional provision, its action cannot be supported or the State intends to withdraw or modify a policy decision, no exception thereto can be taken. It is, however, one thing to say that such an action is required to be judged having regard to the fundamental rights of a citizen but it is 7 impugned circular dated 18-2-1989 another thing to say that by applying the rule of estoppel, the State would not be permitted to raise the said question at all. is So far as the concerned, the State has, in our opinion, a right to support the validity thereof in terms of the constitutional framework. 78. Having said so, we must observe that the ultimate decision must be left in the hands of the State. In view of the Cabinet decision dated 25-1-2000, 300 schools are said to have been recognised. We have, however, our doubts as to whether all correct facts have been placed before the Cabinet or not, particularly in view of the fact that many of the schools which were established in Chhotanagpur and Santhal Pargana are now in the State of Jharkhand. We have pondered over the matter but we are not very sure as to whether apart from the schools which had been identified by the three-man committee and admittedly recognised by the State, any final decision had been taken as regards recognition or otherwise of the remaining schools by the appropriate authority. 79. For the said purpose, we are of the opinion that a committee should be constituted for the said purpose. 80. The Chief Secretary of the State of Bihar is, therefore, requested to constitute a committee comprising two officers and one educationist of repute and/or a retired judicial officer. In the event a judicial officer is appointed as a member of the committee, he would be the chairman thereof. Remuneration of the judicial officers and/or the educationist shall be determined by mutual agreement. 81. The Chief Secretary is hereby requested to place at the disposal of the committee the requisite staff, which may be required by the committee, from amongst the staff of one or the other department of the State. 82. In the event it is found that teachers have been appointed on ad hoc basis, the Vidayalaya Sewa Board shall be directed to make regular recruitment strictly in accordance with law. 83. All the Regional Deputy Directors of Education concerned must also submit their reports in respect of the Project Schools within four weeks from the date before the committee. 84. The committee shall also deal with all such individual cases of the appellants, as has been directed in para 35 of the judgment of the High Court. 85. All the educational institutions claiming recognition or having any other claims would file their representations together with all supporting documents within three weeks from date. In their applications, the institutions must also give details of the students admitted in each class yearwise. 86. Although from the records, it appears that about 300 schools laid their claims having been recognised which is also evident from the decision of the Cabinet, we are of the opinion that the question as to how many schools fulfil the criteria laid down by the State Government in terms of its policy decision must be considered afresh. 8 87. As the constitution of the committee may take some time, such claims may be filed in the office of the Education Secretary, who would open an appropriate cell in this behalf. The committee upon scrutinising the claims of the institutions and/or the teaching and non-teaching staff would submit a report before the Chief Secretary within three months. 88. The Chief Secretary is requested to place the said report together with his comments thereupon before the appropriate authority in terms of the Rules of Executive Business and it is expected that the said authority of the Government of Bihar shall take appropriate decision thereupon within four months from date. 89. We would appreciate it if the State Government takes suitable action against those who may be found responsible for commission of irregularities and/or illegalities in the process of implementation of the government scheme in accordance with law. 90. As regards minimum age of the teaching and non- teaching staff, indisputably the same should be 18 years. 91. So far as educational qualification of the teaching staff is concerned, we are of the opinion that having regard to the fact that a limited number of teachers were to be appointed with a view to accomplish a constitutional goal of spreading literacy in the villages, particularly amongst girls, the standard adopted in Zila schools or government schools constituted in urban areas may not be insisted upon, as was observed by the High Court, but keeping in view the fact that it is essentially a government function, the question as to whether some teachers having BT training or training in Physical Education would be allowed to continue in the said Project Schools or not is left to the State, wherefor a decision in accordance with law may be taken. 92. These appeals are disposed of with the aforementioned observations and directions. In the facts and circumstances of the case, there shall be no order as to costs.” 10. In order to provide another opportunity to the teachers against their exclusion, the State of Jharkhand took a policy decision to form a committee to select the trained teachers who were not approved in the report of Alam Committee. The State of Jharkhand had prescribed the guidelines which had been subject matter of challenge before this court in a batch of writ petitions and the State was compelled in appeal as against the order dated 05.09.2018. A batch of L.P.A.s preferred by the State was heard and the Division Bench of this Court vide a common 9 order dated 19.01.2024 in L.P.A. No. 138 of 2019 and connected matters has observed in the following manner:- “30. In our opinion, this is not in the larger public interest that a teacher who could not obtain the training qualification for quarter a century is provided another opportunity to obtain a degree by extending cut-off date more than a decade after the Alam Committee Report was submitted. A right in law exists only and only when it has a lawful origin. The object of prescribing qualification is to select a suitable person in order to maintain excellence and standard of teaching. In “Pramod Kumar” the Hon’ble Supreme Court held that a person lacking the eligibility cannot approach the Court for the reason that he does not have a right which can be enforced in the Court. A plea has been put forth on behalf of the respondents that some time may be prescribed for attaining the training qualification as validity of appointment of untrained teachers is recognized under the Letter dated 4th February 1989. In our opinion, appointing a person who lacks eligibility for the post would amount to serious illegality and not mere irregularity. A writ petition with such a prayer was not maintainable and the respondents could not have approached the Court for such a relief as they do not have a right in law to seek appointment. In “Umadevi (3)” and “Official Liquidator” the Hon’ble Supreme Court reiterated that long years of continuous service even without break would not justify the claim for regularization. The powers under Article 226 of the Constitution are discretionary and are exercised in furtherance of justice, equity and good conscience. The writ Court is therefore duty bound to take all the relevant facts and circumstances into consideration and decide for itself as to whether the decision/order under challenge warrants interference of the Court.” 11. From the above discussion, coupled with the order of L.P.A.s it appears that two parallel schools in the name of Project Girls School were running in the same campus and in the same building and both the schools submitted their documents for recognition of services before the three-men Alam Committee. The claims of the petitioners were rejected by the committee. Thereafter, they approached this Court by filing writ petition being W.P.(S) No. 5129/2011 which was disposed of and in view of the order; the petitioners filed representation before appropriate authority for regularization of their services which was rejected. 10 12. It further appears that the Director, Secondary Education, Jharkhand, Ranchi in his individual capacity issued a review letter vide memo no. 802 dated 11.5.2016 and by this letter directed the District Education Officer, Palamau to ensure payment to the petitioners in terms of order as contained in Notification No. 424 dated 9.2.2011 after verifying the records relating to the petitioners. Thereafter, the then District Education Officer namely Mrs. Meena Kumari Rai paid the salary to the petitioners from January, 2018 to April 2018 for which the department has taken serious action against her. 13. Further from Annexure 16 of the writ application, it appears that the petitioners after joining the Project High School found that there was no headmaster or students and the said fact was brought to the knowledge of Respondent No.4 and the Deputy Commissioner, Palamau vide letter dated 31.12.2018 but it was of no avail. However, one of the grounds taken by the respondent to reject the claim of the petitioners is that there were no students in the school; thereby the petitioners are not entitled to arrears of salary. 14. Having regard to the aforesaid discussions; it is crystal clear that the facts discussed above are disputed question of facts and such facts can be adjudicated only through competent court in a regular suit or before other statutory forum. It is not for this court to interfere under Article 226 of the Constitution of India where a disputed question of fact is raised. High court in exercise of jurisdiction under Art. 226 of the Constitution, would ordinarily not adjudicate a matter where the foundational facts are disputed [Refer Sughashree Das v. State of Orissa reported in (2012) 9 SCC 729. 11 15. It further appears from Annexure 18 of all the writ applications that the petitioners have filed an appeal against the order of Respondent Director rejecting the claim of the petitioner for salary before the Principal Secretary which is still under consideration; as such at this stage the appropriate authority to decide upon the grievance of the petitioners is the Principal Secretary. 16. In view of the aforesaid facts and circumstances; these writ applications, are hereby, disposed of by directing the petitioners to approach the appropriate authority i.e. Principal Secretary, inasmuch as, an appeal is already pending before the said authority, and submit the copy of appeal preferred by the petitioners for convenience as is evident from Annexure-18 and after verification of the record and necessary rules and regulations of the State, the appropriate authority shall pass a reasoned order with regard to the salary of the petitioners and arrears, if any, and the question of posting of the petitioners, within a period of 16 weeks from the date of receipt/production of a copy of this order. 17. With the aforesaid observation, these writ applications stand disposed of. Pending I.A.s, if any, are also closed. (Deepak Roshan, J.) Amardeep/ NAFR/ 12