Sarita Surin … v. 1.The State of Jharkhand 2.The Director, Primary Education, Human Resources Development Department, Govt. of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 7963 of 2012 --- Sarita Surin … … Petitioner Versus 1.The State of Jharkhand 2.The Director, Primary Education, Human Resources Development Department, Govt. of Jharkhand, Ranchi 3.The District Superintendent of Education, Simdega 4.The Principal, GEL Primary School, Kahupani, Jampani, Thethaitangar, Simdega… Respondents ---
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR --- For the Petitioner For the Respondents : Mr. Rahul Kumar, Advocate : Mr. Prashant Kumar Singh, G.P. VI --- 05/27.11.2013 The petitioner has approached this Court seeking a direction upon the respondents for payment of salary and arrears of salary from 21.05.2011. 2. Heard learned counsel for the parties and perused the documents on record. 3. Pursuant to advertisement dated 03.05.2011 issued by the Managing Committee of the respondent – School, the petitioner participated in the selection process and she was selected on 19.05.2011. The Deputy Superintendent of Education approved the appointment of the petitioner by letter dated 29.08.2011 with effect from the date of her joining i.e., 21.05.2011, however as the salary to the petitioner was not paid, the petitioner has approached this Court. 4. A counter affidavit has been filed stating as under: 6. “That it is humbly stated and submitted that the case of the petitioner is that an advertisement was issued on 3rd of May, 2011 for appointment on the post of Assistant Teacher in G.E.L. Primary School, Kahupani, Thethaitangar in the district of Simdega, which is a Government Aided Minority School. Pursuant to the said advertisement, the petitioner was appointed on 21.05. 2011. The record relating to his appointment was forwarded by the -2- Block Education Extension Officer, Bano, Simdega to the then District Superintendent of Education, Simdega on 12.07.2011 and her appointment was approved by the then District Superintendent of Education, Simdega. 7. That it is humbly stated and submitted that the appointment of teachers in Government Aided Minority School, in question, is basically governed by the provisions enshrined in Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the '2009 Act'). Section 23 of the said 2009 Act prescribes qualifications for appointment and terms and conditions of services of teachers. The National Council for Teachers Education (hereinafter referred to as the NCTE), in exercise of power conferred by sub-section 1 of Section 23 of the said 2009 Act, determined the minimum qualification for appointment of teachers from Class-I to Class-VIII and this led to issuance of Notification dated 23rd August, 2010. Clause-1 of this Notification dated 23rd August, 2010 (Copy enclosed as Annexure-1) prescribes the minimum qualification. This clause is applicable for Class-I to Class-VIII schools. The school, in question, is imparting education from Class-I to Class-V. Sub-clause (b) of Clause-1 of this Notification dated 23rd August, 2010 reads as thus:- “1. Pass in Teacher Eligibility Test (TET), to be conducted by appropriate Government in accordance with the guidelines framed by the 'NCTE' for the purpose.” However, Clause-5 of this Notification dated 23rd August, 2010 reads thus:- “5. Teacher appointed after the date of this Notification in certain cases. Where an appropriate Government or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification such appointments may be made in accordance with the 'NCTE' (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time).” That it is humbly stated and submitted that 8. prior to issuance of the notification dated 23rd -3- August, 2010, a person, like the petitioner, was not required to have passed TET for appointment on the post of Teacher as per this Regulation, 2001. However, after this notification dated 23rd August, 2010, he must have the qualification of TET pass, as is apparent from Clause-5 of this notification also.
Decision
9. That it is humbly stated and submitted that advertisement was issued on 03.05.2011; the petitioner was appointed on 21.05.2011; the records were sent to the then District Superintendent of Education on 12.07.2011 and the same is said to have been approved on 29.08.2011. Therefore, the entire process from the very inception started much after this Notification dated 23rd August, 2010 issued by the 'NCTE' which governs the field and prescribes that a candidate must passed TET before appointment as a Teacher in schools from Class-I to Class-V. It is not the case of the writ petitioner that he has ever passed Teachers Eligibility Test (TET) so as to have the minimum requisite qualification for appointment as a Teacher, the post on which he claims to have been appointed. The petitioner is not a TET passed candidate as such his very appointment is contrary to law and void ab initio. The entire process initiated by the School Managing Committee of the School, in question, was per say illegal right from beginning. 10. That with regard to the statements made by the petitioner in paragraph-1 of the writ petition, it is humbly stated and submitted that the petitioner is not entitled for any relief as sought for in this paragraph as he does not possess the requisite minimum qualification for appointment as a Teacher. The petitioner has not passed TET and as such he cannot be appointed on the post of Teacher by the School Managing Committee, the Government is not liable to make any payment by way of salary to such employee, like the petitioner. Such illegal appointment cannot be approved by the Government as the same would amount to financial embezzlement. The so-called appointment of the petitioner is void ab initio.” 5. The learned counsel appearing for the petitioner has submitted that, the notification for the Teachers Eligibility -4- Test was issued on 23.08.2010 and by the time the petitioner was appointed, no test was conducted in the State of Jharkhand and therefore, the notification dated 23.08.2010 cannot be made applicable in the case of the petitioner to deny her claim of appointment and salary. 6. The learned counsel appearing for the respondents has submitted that since the notification for the Teachers Eligibility Test was issued on 23.08.2010, any appointment made thereafter, has to be in conformity with the said notification and since the petitioner admittedly has not cleared the Teachers Eligibility Test, her appointment is in contravention to the notification dated 23.08.2010. 7. A perusal of the documents on record would indicate that, though the advertisement was issued by the Managing Committee of the respondent – School on 03.05.2011, and the petitioner was appointed by letter dated 19.05.2011 however, by that time the notification for Teachers Eligibility Test was already issued on 23.08.2010. In view of the aforesaid, the contention raised by the counsel for the petitioner that, since no Teachers Eligibility Test was conducted by that time, the requirement under notification dated 23.08.2010 cannot be made applicable in the case of the petitioner, is not tenable. After the issuance of notification dated 23.08.2010, any appointment made on the post of the Teacher has to be in conformity with the said notification. The Managing Committee of the School though had issued advertisement and the petitioner was selected on 19.05.2011, such appointment cannot be said to be in conformity with the notification dated 23.08.2010 and thus, not legal. 8. In view of the aforesaid, I find no merit. Accordingly, this writ petition is dismissed. R. Shekhar Cp 2 (Shree Chandrashekhar, J.)