Mustafizur Rahman v. Pakur (Jharkhand)

--- : Md. Jalisur Rahman, Advocate : Mr. Kishore Kr. Singh, SC V : Mr. Krishna Prajapati, AC to SC V : Mrs. Richa Sanchita, Advocate : Ms. Riya Narain, Advocate : Ms. Risheeta Singh, Advocate --- 08/27.02.2024 This writ petition has been filed for the following relief: “(1) For promoting the petitioner in the post of "Head Maulvi" as the respondent no. 7 is junior to him and has been given the charge of the post of "Head Maulvi" and Secretary of the Management Committee is trying to get him appointed in the said post as regular "Head Maulvi", when the respondent no. 07 is working as "Maulvi" and having the qualification of M.A., B.Ed, his date of birth is 10.01.1987, when the present petitioner is Senior most, his date of birth is 01.01.1985 and having more qualification than him i.e. Fazil and is working in the post of “Alim”.

2. The learned counsel for the petitioner has submitted that in view of the definition of “Educational institution” as contained in Section 2 (n), read with Section 8 of Jharkhand Education Tribunal Act, 2005, the respondent educational institution, which is a madrasa, is not covered under the Act of 2005. The learned counsel has submitted that in the board which administers the madrasa, there are representatives from Jharkhand Academic Council also and it receives aid from the State Government. 2

3. The learned counsel appearing on behalf of Jharkhand Academic Council has submitted that the Jharkhand Education Tribunal has the necessary jurisdiction to deal with the dispute and has referred to an order dated 21.08.2023 passed in W.P.(S) No. 1080 of 2016 wherein the termination order was under challenge and this Court has disposed of the writ petition with a direction to the petitioners to approach the Jharkhand Education Tribunal for redressal of their grievances. She submits that in that case also, it was a minority college. 4. After hearing the learned counsel for the parties and after going through the provisions of the Jharkhand Education Tribunal Act, 2005 where the background of the Act has been mentioned in the notification itself which reads as under: “an Act to make suitable provisions for constitution of statutory forum, to be known as Appellate Tribunal for looking into the grievances of teachers of aided, affiliated and Private Educational Institutions and that of the parents / guardians of the students studying therein and to comply with the order of Hon’ble Supreme Court in the matter of TMA Pal versus Karnataka State and the ruling dated 5th August, 2003 passed by the Division Bench of Honourable Jharkhand High Court in the matter of WP(PIL) No.2744 of 2003.” The “educational institution” has been defined as under: 2 (n) “Educational Institution” means any educational institution managed and administered by private management located within the State of Jharkhand. The “aided school” has also been defined as under: 2 (p) “Aided School” means a school receiving any sum of money as aid out of the State funds; Section 8 of the Act reads as under:

8. Jurisdiction, power and authority of the Jharkhand Education Tribunal. - (1) Save as otherwise expressly provided in this Act, the Jharkhand Education Tribunal shall exercise on and from the appointed day, all the jurisdiction, power and authority exercisable immediately before that day by all Courts (Except the Jharkhand High Court and Supreme Court of India) regarding:- (a) Matters concerning recruitment to any post in connection with the affairs of the educational institution; (b) All matters concerning the service conditions of employees of the educational institutions; 3 (c) Grievances of the employees against the management of the educational institutions; the educational institutions regarding (d) Grievances of the guardians and parents of students against the management of teaching standards, fee structure, infrastructural facilities, development works and allied matters related thereto; (e) Such matters relating to educational institutions as may be referred to the Tribunal by the State Government by notification from time to time.”

5. This Court finds from the writ petition that no averments have been made regarding the induction of any authority from the State in the management of the madrasa. However, this Court is of the considered view that merely because one or the other State Government authority forms a part of the managing committee the same by itself will not take away the status of Madarsa to be a privately managed school. Further, the fact that the Madarsa is receiving aid from the government by itself will not take the Madarsa out of the jurisdiction of the Jharkhand Education Tribunal Act, 2005. 6. It is also important to note that against the order passed by the Jharkhand Education Tribunal, there is a statutory remedy of appeal before this Court under the nomenclature A.C.(S.B). 7. This Court is of the considered view that the petitioner has a remedy before the Jharkhand Education Tribunal in connection with the redressal of his grievances and on account of the availability of efficacious alternative remedy, this Court is not inclined to entertain this writ petition under Article 226 of the Constitution of India. Accordingly, this writ petition is dismissed as such. 8. The petitioner may avail his remedy before Jharkhand Education Tribunal within a period of 15 days from today. Saurav (Anubha Rawat Choudhary, J.)