Rupa Kumari … v. 1. The State of Jharkhand the Secretary, Human Resources Development Department, Government of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5288 of 2015 Rupa Kumari …. Petitioner Vs. 1. The State of Jharkhand the Secretary, Human Resources Development Department, Government of Jharkhand, Project Building, HEC, Jagannathpur, Ranchi through 2. The Director, Primary Education, Human Resources Development Department, Government of Jharkhand, Project Building, HEC, Dhurwa, Jagannathpur, Ranchi 3. The Deputy Commissioner, Garhwa 4. The District Education Officer, Garhwa 5. The Regional Deputy Director of Education, Palamau Division, Medninagar, Palamau 6. The Deputy Development Commissioner, Garhwa 7. The District Superintendent of Education, Garhwa ---------- … Respondents CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents
Legal Reasoning
: Mr. Mahesh Tewary, Advocate : Ms. Divya, AC to SC-III ----------- 06/ 04.07.2023 The petitioner has approached this Court with a prayer for quashing of Memo No.1891 dated 27.08.2015 passed by the District Superintendent of Education, Garhwa. Further, prayer has been made for a direction upon the respondents to consider the case of the petitioner for appointment to the post of Teachers under Social Studies as he has passed the B.Com Examination. 2. At the very outset, learned counsel appearing on behalf of the petitioner submits that issues involved in this writ petition have already been decided by this Hon’ble Court in its judgment delivered on 12.09.2019 in W.P.(S) No.963 of 2017 along with other analogous cases, which was affirmed up to Hon’ble Division Bench in LPA No.122 of 2020 along with
Decision
other analogous cases and as such, this case may also be disposed of in view of the observations made in W.P.(S) No.963 of 2017 along with other analogous cases. 3. On the other hand, Ms. Divya, learned counsel for the respondents does not object the submissions of the learned counsel for the petitioner. 4. Be that as it may, having gone through the fair submissions of the parties, it appears that the issue is now no more res integra as the similar issue fell for consideration before this Court in W.P.(S) No.963 of 2017 along with other analogous cases and this Court has clearly held as under:- 2 10. The Notification issued by the NCTE dated 23.08.2010 in para II (a) clearly prescribed that candidates having B.A./B.Sc. degree are entitled for appointment in Class VI to VIII. However, the NCTE vide notification dated 04.05.2011 i.e. Annexure-5 to the writ petition further clarified that even the B.Com degree holders are included in para 1 to 3 to the notification dated 23.08.2010 and appropriate notification to that effect was issued on 29th July, 2011 by the NCTE, wherein in place of words ‘B.A/B.Sc.’, the word ‘Graduation’ was inserted. That means, the Graduates of any stream, being Arts, Science or Commerce, were made entitled for appointment for Classes VI to VIII as teachers. Further, the NCTE vides its reply dated 09.12.2016 under RTI Act, 2005 has clarified that pursuant to Notification dated 29th July, 2011, a Commerce Graduate is entitled for appointment as a Teacher in Upper Primary Section, which is at Annexure 15 series to W. P. (S) No.963 of 2017. The NCTE in the case of Ritesh Tripathi Vs. State of Rajasthan & Ors., reported in 2011 SCC online Raj 969 filed an affidavit to the effect that Commerce Graduates are entitled for appointment in classes VI to VIII as teachers. In case of Ajit Kumar Pandey Vs. State of Orissa & Ors., reported in 2010 SCC online Ori 315, same ratio was applied and Commerce Graduates were made entitled for appointment to Arts Teacher posts. Since, the NCTE itself amended the Notification dated 23.08.2010 and issued amended notification dated 29.07.2011 prescribing for appointment of teachers to be Graduation only in place of ‘B.A/B.Sc., at relevant para of that notification. The respondents cannot deny the same and take a U-turn as no further notification in suppression to the said notification is in existence. 11. In supplementary counter-affidavit dated 27.10.2018 filed on behalf of the respondents in W.P.(S) No.1386 of 2017, it has been clearly stated the aforesaid query/guidance, the department of Higher, Technical and Skills Development after consultation with all the five Universities of the State vide letter No. 1675 dated 20.08.2018 has opined that at present, the streams of Languages (Humanities) and Commerce have not been segregated and come under the purview of the Social Science stream and hence the qualification /eligibility acquired by a Commerce Degree could be placed under the Category of Social Science. 12. As a sequitur to the aforesaid rules, observations, guidelines and judicial pronouncement, this Court is of considered opinion that the impugned orders are not sustainable in the eyes of law for the following facts and reasons :- the qualification in response in para 7 that to 1. From perusal of the documents brought on record and consideration of the relevant Rules of the NCTE and also that subsequent amendments/ modifications, Graduates of any stream are eligible for appointment as Graduate Trained Teacher for Class VI to VIII. 2. In case of Bhim Narayan Das Vs. The State of Jharkhand [W.P.(S) No.3246 of 2017], the respondent- State of Jharkhand has come out with a Memo dated 28.08.2018, whereby it has been clarified that Graduation Degree obtained on the basis of transpires it 3 Commerce syllabus can be kept under the Category of Social Science under the provisions of Jharkhand Primary School Teachers Appointment Rules, 2012. 3. Vide Memo No. 858 dated 29.04.2019 issued by the DSE, Dumka, the services the petitioner in W.P.(S) No.3246 of 2017 has been reinstated in view of Memo dated 28.08.2018, considering the Commerce Graduates eligible for appointment as Assistant Teachers, and subsequently, the order of termination was recalled vide Memo dated 29.04.2019, which shows that even the Commerce Graduates can be considered for appointment as Assistant Teacher in Arts Stream as Commerce Degree has been considered to similar degree as that of Social Science. 4. The Hon’ble Apex Court in case of State of Uttar Pradesh & Ors. Vs. Shiv Kumar Pathak & Ors., reported in (2018) 12 SCC 595 at para 14 & 17 has held thus :- 14. On the other hand, the stand of the original writ petitioners is that the subject of education falls under Schedule VII List III Entry 25 of the Constitution after the 42nd Amendment. Thus, by virtue of Article 254 of the Constitution, the law made by Parliament prevails over any law made by the State. It was submitted that the NCTE Act has been enacted by Parliament to achieve “planned and coordinated development of the teacher education system”. The Council constituted under the Act is empowered to issue guidelines under Sections 12 and 12-A for ensuring planned and coordinated development of teacher education and also to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher. Further, vide Notification dated 31-3-2010 under Section 23 of the RTE Act, the Central Government has authorised NCTE as the “academic authority” to lay down minimum qualifications for a person to be eligible for appointment as a teacher. 17. There is no manner of doubt that NCTE, acting as an “academic authority” under Section 23 of the RTE Act, under the Notification dated 31-3-2010 issued by the Central Government as well as under Sections 12 and 12-A of the NCTE Act, was competent to issue Notifications dated 23-8- 2010 and 11-2-2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. However, since NCTE itself has taken the stand that Notification dated 11-2-2011 with regard to the weightage to be given to the marks obtained in TET is not mandatory which is also a possible interpretation, the view of the High Court in quashing the 15th Amendment to the 1981 Rules has to be interfered with. Accordingly, while we uphold the view that qualifications prescribed by NCTE are binding, requirement of weightage to TET marks is not a mandatory requirement. 13. In view of the specific stands of the respondents and in view of the Memo dated 28.08.2018 and 29.04.2018, the orders of 4 termination i.e. impugned order dated 02.12.2016 issued by respondent No.4 [in W.P.(S) No.963 of 2017], impugned order dated 03.11.2016 issued by respondent No.3 [in W.P.(S) No.476 of 2017], impugned order dated 28.07.2016 issued by respondent No.3 [in W.P.(S) No.1386 of 2017], impugned order dated 03.11.2016 issued by the respondent No.4 [in W.P.(S) No.6692 of 2016], impugned order dated 02.12.2016 issued by the respondent No.4 [in W.P.(S) No.917 of 2017], impugned order dated 02.12.2016 issued by the respondent No.4 [in W.P.(S) No.4645 of 2018] and impugned order dated 19.08.2017 issued by the respondent No.4 [in W.P.(S) No.5390 of 2017 are hereby quashed and set aside. 14. As a sequel of the quashment of the impugned orders, the respondents are directed to reconsider the case of the petitioners for appointment to the post of Assistant Teacher in Classes VI to VIII under the Social Science Subject with back wages. As far as issue of payment of salary for the period for which they have not worked due to their termination is left open for consideration by the department concerned. 5. The order passed in W.P.(S) No.963 of 2017 along with other analogous cases has been by Hon’ble Division Bench in LPA No.122 of 2020 and other analogous cases vide order dated 20.02.2023. 6. In view of judicial pronouncement, impugned order as contained in Memo No.1891 dated 27.08.2015 passed by District Superintendent of Education, Garhwa is hereby quashed and set aside to the extent that the B.Com passed candidates are also eligible for appointment under social studies subjects. 7. Further, the respondents are directed to reconsider the case of the petitioner for appointment to the post of Teacher in Classes VI to VIII under the Social studies subject, within a period of eight weeks’ from the date of receipt of a copy of this order, in accordance with law. 8. Accordingly, writ petitions stands allowed. Punit/- (Dr. S.N. Pathak, J.)