Debashis Kumbhakar v. The State of Jharkhand

Mr. Anil Kumar, Sr. Advocate & Ms. Chandana Kumari, Advocate For the Respondent-State : Mr. Shrenu Garapati, SC-III ----- 5/ 08.06.2022 Heard the parties.

2. Petitioners have challenged the order contained in Memo No. 2122 dated 16.12.2016, whereby the services of petitioner Debashis Kumbhakar as Graduate Trained Teacher (Arts) and petitioner Alam Chand Mahto as Graduate Trained Teacher (Science) have been terminated. 3. Facts of the case lie in a short compass. An Advertisement No. 03/2015 was floated for appointment of Graduate Trained Teachers in different subjects from the office of District Superintendent of Education, Saraikella-Kharasawan. The minimum educational qualifications have been prescribed under clauses 3 and 5 of the advertisement strictly as per the Jharkhand Primary School Teacher Appointment Rules, 2012. Petitioner Debashis Kumbhakar, who was working as Para-Teacher in Kukru (Ichagarh), applied for the post of Graduate Trained Teacher (Arts). Similarly, petitioner Alam Chand Mahto, who was working as Para-Teacher, applied for the post of Graduate Trained Teacher (Science). Further case of the petitioners is that they underwent the selection process and finally selected. It is specific case of the petitioners that after counseling and scrutiny of their educational certificates, they were appointed to the post of Teacher. Appointment letter contained in Memo No. 2524 dated 31.12.2015 W.P.(S) No. 60 of 2017 W.P.(S) No. 62 of 2017 2 was issued to petitioner Debashish Kumbhakar and he joined in the concerned office/school on 2.1.2016. Similarly, appointment letter contained in Memo No. 2516 dated 31.12.2015 was issued to the petitioner Alam Chand Mahto and he joined on 30.1.2016. Thereafter, both the petitioners discharged their duties to the full satisfaction of their controlling authority(s). One fine morning, a show cause notice vide letter dated 23.8.2016 was issued to the petitioners, as to why their services be not terminated, as there is no provision to appoint a Science Graduate / Arts Graduate to the post of Graduate Trained Teacher (Arts) / (Science). Petitioner Debashish Kumbhakar explained inter alia that since he had qualified in Jharkhand Teachers' Eligibility Test in Social Science subject, he is eligible to be appointed on the post of Graduate Trained Teacher (Arts). Similarly, petitioner Alam Chand Mahto replied inter alia that as he passed J-TET in Science/Mathematics, he is entitled for appointment on the post of Graduate Trained Teacher (Science). However, their services have been terminated by the impugned order and as such, the petitioners having no option left, knocked the door of this Court. 4. Mr. Anil Kumar, learned senior counsel, assisted by Ms. Chandana Kumari, Advocate appearing for the petitioners submit that the impugned order of termination is neither sustainable in law nor on facts, inasmuch as, the same is contrary to the said Rules, 2012 read with the clause mentioned in the Advertisement. Learned senior counsel submits that the petitioners are eligible to be appointed on the post of Graduate Trained Teacher (Arts), so far as petitioner Debashish Kumbhakar is concerned and Graduate Trained Teacher (Science) so far as petitioner Alam Chand Mahto is concerned, as per Rule 4 of the said Rules, 2012, which prescribes the qualification that a candidate must be Graduate with TET pass. Learned Senior counsel further submits that after appearing in the selection process and after due scrutiny of the certificates, the petitioners were appointed and now the respondent authorities have terminated the petitioners arbitrarily merely on the fact that they are not Graduates in subject concerned, in which subject they were appointed. Learned senior counsel submits that the respondents ought to have considered the fact that before appointment to the said post, the petitioners were imparting education to the students in primary school as Para-Teacher W.P.(S) No. 60 of 2017 W.P.(S) No. 62 of 2017 3 in Arts as well as Science subjects. Lastly it has been argued that the petitioners are entitled for salary for the period they worked as Teacher. 5. Learned counsel representing the State vehemently opposes the contention of the learned senior counsel appearing for the petitioners and submits that though the petitioners were appointed after due selection process, followed by counseling, but they are not eligible for appointment on the post of Graduate Trained Teacher (Arts), so far as petitioner Debashish Kumbhakar is concerned and Graduate Trained Teacher (Science), as far as petitioner Alam Chand Mehta is concerned, as they are Graduates in Science and Arts respectively. There is no provision to appoint a Science Graduate to the post of Graduate Trained Teacher (Arts). Therefore, rightly a show cause notice was issued to the petitioners and the replies, submitted by the petitioners were duly considered by the District Education Establishment Committee, who held that the subject of Graduate and TET examination ought to have been same in view of the provisions enshrined in clause 5(d) and 3(II) (c) of the Advertisement No. 3/2015, but the petitioners' subject are different with each other level and as such, their appointments have been canceled. Learned counsel accordingly submits that there is no illegality in canceling the appointments of the petitioners, as they did not fulfill the requisite qualification. 6. Be that as it may, having gone through the rival submissions of the parties across the Bar, this Court is of the considered view that no interference is warranted in the writ petitions. Government of Jharkhand, Human Resource Development Department (now known as School Education and Literacy Department), under the proviso to Article 309 of the Constitution of India framed Rules, known as 'Jharkhand Primary School Teacher Appointment Rules, 2012' for appointment of teachers in primary schools of the State. The eligibility criteria of teachers for direct recruitment has been prescribed in clause 4 read with clause 9 of the said Rules. Vide letter no. 1192 dated 2.6.2015, the Department had issued direction for conducting the recruitment process to the post of Graduate Trained Teacher in the Government Middle Schools, which prescribes inter alia under clause 4 that a candidate must have the degree of Science/Mathematics subject in Graduate level for appointment of Graduate Trained Teacher (Science). W.P.(S) No. 60 of 2017 W.P.(S) No. 62 of 2017 4 Similarly clause 5 prescribes that a candidate must have the degree of Social Studies in Graduate level for appointment of Graduate Trained Teacher (Arts). Thereafter, Advertisement No. 03/2015 was floated for appointment to the post of Graduate Trained Teachers in different streams, strictly in terms with the said Rules, 2012 (amended up to date). To be more specific, sub-clause (क) and (ख) thereof are quoted herein below in extenso:- (क) ्በातक ्ቜर पर वि्ሺान / गवित विषय के साथ उ्ቈीिण अ्ቜथी, जो झारख्ቄ ्ቚारंविक वि्ቕालय वि्ቌक वनयु्वि वनयमािली, २०१२ (यथा संिोवित) की अ्቗ अहताणओं को पूरा करते है, की वनयु्वि ्በातक ्ቚविव्ቌत (वि्ሺान) वि्ቌक के पद पर की जाएगी l (ख) ्በातक ्ቜर पर सामावजक वि्ሺान विषय में उ्ቈीिण अ्ቜथी, जो झारख्ቄ ्ቚारंविक वि्ቕालय वि्ቌक वनयु्वि वनयमािली, २०१२ (यथा संिोवित) की अ्቗ अहताणओं को पूरा करते है, की वनयु्वि ्በातक ्ቚविव्ቌत (कला ) वि्ቌक के पद पर की जाएगी l

7. On a plain reading of aforesaid clauses of the advertisement, it appears that minimum qualification for appointment of Teacher in a particular subject was that a candidate must have the degree at graduate level in the same subject and not in any other subject or related subject. In the instant case, petitioner Debasish Kumbhakar is appointed on the post of Graduate Trained Teacher (Arts), though he is not Arts Graduate. Similarly, petitioner Alam Chanda Mehta is appointed as Graduate Trained Teacher (Science), though he is not graduate in Science subject, rather, he is graduate in Arts subject i.e. Social studies, whereas it is admitted fact that for imparting education at higher primary level, one should have specialized degree in that particular subject and in not other subject. The petitioners have completely overlooked the requirements as mentioned in the advertisement and have violated the terms and conditions of the advertisement and as such, it can be comfortably held that a fair and proper recruitment process did not take place and irregularities have been committed by the respondents, which cannot be allowed to be perpetuated. Merely because the petitioners had the teaching experience as Para-Teacher without having the requisite qualification, cannot be taken into consideration for appointment to the post of Teacher of a particular subject. This Court holds that appointment of petitioners has been done without considering the requisite qualification as mentioned in the advertisement and is full of irregularities.

8. In the Judgment rendered in the case of Bedanga Talukdar -Vs- Saifudaullah Khan & Ors. reported in 2011(12) SCC 85, wherein, Their W.P.(S) No. 60 of 2017 W.P.(S) No. 62 of 2017 5 Lordships have clearly held that the Selection Process has to be completed strictly in terms of Advertisement. For better appreciation, para-29 the Judgment passed in the case of Bedanga Talukdar is quoted hereunder: “29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in selection procedure. stipulated accordance with Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.”

9. The issues involved in this case is no more res integra. Similar nature of issues have already been considered by this Court in W.P.(S) No. 4079 of 2018 and other analogous cases, which has also been affirmed by the Hon’ble Division Bench in L.P.A. No. 693 of 2019 and other analogous cases. While affirming the Judgments passed in W.P.(S) No. 4079 of 2018 and other analogous cases, the Hon’ble Division Bench in paragraph-32 has held as under: “32. This Court, after giving thoughtful consideration of the facts, as discussed herein above and after going across the findings recorded by learned Single Judge and after considering the entire aspect of the matter vis-à-vis legal position and considering the terms of the advertisement, is of the view that the learned Single Judge has rightly come to the finding about decision taken by the authority in not considering the writ petitioners- they are not having degree at appellants graduation/post-graduation level with the subject "History" and as such has directed the authority to exclusively the candidature of W.P.(S) No. 60 of 2017 W.P.(S) No. 62 of 2017 6 consider the candidature of such candidates, who have obtained degree exclusively in the subject History as per the advertisement.”

10. Therefore, It can comfortably be said that any appointment has to be made as per the advertisement and cannot be entertained dehors the rules. A Science Graduate cannot be appointed to teach arts subject. Similarly Arts Graduate cannot be appointed to teach science. Merely because, the petitioners have qualified TET in social studies or Science / Mathematics, they cannot be appointed as Arts teacher / Science Teacher respectively. As such, there is illegality in the appointment of petitioners to the post of Graduate Trained Teacher (Arts) and Graduate Trained Teacher (Science) respectively and as such the same is not tenable in the eyes of law.

11. As a sequitur to the aforesaid observations, rules, guidelines and legal propositions, I do not find any illegality or arbitrariness in action of the respondents in holding the petitioners ineligible for the concerned posts. I do not find any interference is warranted in the writ petitions preferred by the petitioners.

12. Accordingly, both writ petitions stand dismissed. (Dr. S. N. Pathak, J.) R.Kr.