The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND, RANCHI ---- W.P.(S) No. 5930 of 2023 ---- Father Gregory Kullu, aged about 55 years, son of Shri Remis Kullu, resident of village Khanjaloya Kadamtoli, P.O. Keondih, P.S. and District Simdega .... Petitioner -- Versus -- 1.The State of Jharkhand through the Secretary/ Principal Secretary, School Education and Literacy Department, having office at Project Building, P.O. and P.S. Dhurwa, Town and District Ranchi 2.The Director, Secondary Education, School Education and Literacy Department, having office at Project Building, P.O. and P.S. Dhurwa, Town and District Ranchi 3.The District Education Officer, Gumla, P.O., P.S. and Dist.Gumla 4.St. Pius Janta High School, Bhikhampur, through its Secretary, having office at School Campus at Bhikhampur, P.O. Bhikhampur, PS SC and ST, District Gumla .... Opposite Parties ----
Legal Reasoning
by the Division Bench of this Court in the case of Rizwana Khatoon v. State of Jharkhand and Others and analogous cases reported in 2023 SCC OnLine Jhar 1975 and in paragraph nos.81, 95 and 96 of the said judgment, it has been held as under: “81.This Court has also held hereinabove that the communication dated 09.12.2010 cannot be said to be a policy decision of the State Government and as such, there is no question 3 W.P.(S) No. 5930 of 2023
Arguments
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner :- For the State :- --- Mr. Manoj Tandon, Advocate Mr. Adamya Kerketta, Advocate Ms. Neha Bhardwaj, Advocate Mr. Amrit Raj Kisku, Advocate ---- 4/31st August, 2024 Heard the learned counsels appearing on behalf of the petitioner as well as the respondent State. 2. The prayer in this petition has been made for quashing of the order dated 09.06.2023 issued under the signature of respondent no.2 1 W.P.(S) No. 5930 of 2023 whereby the approval of appointment of the petitioner has been rejected on the ground that this petitioner was over aged by eight months and three days on the date of appointment on the post of Head Master. The further prayer in this petition has been made for direction upon the respondent authority to pay the salary of the petitioner from the date of joining on 01.04.2021 and to continue to pay the onward salary to the petitioner as the petitioner has been working on the post of Head Master at St. Pius Janta High School, Bhikhampur in the district of Gumla uninterruptedly. 3. Mr. Tandon, the learned counsel appearing on behalf of the petitioner submits that St. Pius Janta High School, Bhikhampur in the district of Gumla is a religious minority school and this school has been declared as a minority by notification contained in Memo No.1689 dated 6th May 1998 issued by the Education Department of Government of Bihar. The competent authority to appoint teachers in the school is the managing committee of the school. The appointment of the Brothers/ Fathers and Sisters in the minority institution is governed by the Circular of the State of Bihar as contained in letter no.7325 dated 10.05.1983. He submits that the petitioner did his matriculation from St. Marys High School, Samtoli in the district of Gumla in the year 1985 and the petitioner did his Intermediate from St. Xavier’s College, Ranchi in the year 1987 and the petitioner did his Graduation from Ranchi University in the year 1995 under Ranchi University itself. The petitioner was appointed as Headmaster by Office order dated 25.03.2021 in the pay scale of PB-II 9300-34800 with grade pay of Rs.5400/- and thereafter the petitioner joined on 01.04.2021 and he submitted his joining before the Secretary, St. Pius Janta High School, Bhikhampur. He submits that the petitioner is a permanent resident of Jharkhand and the Certificate of Local resident was granted to the petitioner by certificate no.424 dated 22.7.2002. The petitioner belongs to scheduled tribe category and the certificate to this 2 W.P.(S) No. 5930 of 2023 effect was also granted by Sub Divisional Officer, Chainpur by certificate no.630 dated 23.7.2002. Thereafter, the District Education Officer forwarded the entire documents to the Director Secondary Education (respondent no.2) for granting approval to the appointment of the petitioner. The Director, Secondary Education, however, raises certain objection with respect to the appointment of the petitioner. The objection was thereafter explained and the same was forwarded by the District Education Officer, Gumla to the District Secondary Education by letter no.2215 dated 09.12.2022, and pursuant to that the petitioner was appointed. By order dated 9.6.2023 the Director, Secondary Education has refused to grant approval to the petitioner for appointment of the petitioner on the ground that the petitioner was over aged by eight months and three days on the date of appointment. Aggrieved with this order, the petitioner has approached this Court. He submits that the appointment in a minority high school of teachers is governed by the provisions enshrined in Bihar (Now Jharkhand) Non-Government Secondary Schools (Taking Over Of Management and Control) Act, 1981. He draws the attention of the Court to section 18(f) of the said Act and submits that the Teachers, Non-teaching Staff Appointment and Condition of Service Rules absolutely employs in the present case in view of the above provision made under section 18(f) of the said Act. He submits that by the impugned order the rejection is arbitrary, illegal and unconstitutional and the authorities concerned are bound to approve the same in light of the judgment rendered
Decision
of applicability of age prescribed in the circular dated 14.06.2008 and further by taking into consideration the provision of the Act, 1981 as per the discussion made hereinabove, there was no occasion for the State Government to reject the issue of approval of services of the writ petitioners by passing the impugned order. 95. Further, the issue in L.P.A. No.221 of 2017 pertains to NonGovernment Primary School but here the case is of minority aided school for which, the specific Act, i.e., the Act, 1981 is there and as yet, there is no rule formulated prescribing the maximum age of appointment, rather, only rider is under Section 18(3)(f) for not granting the benefit of grant-in-aid, if appointment has been made beyond the age of 58 years or the concerned employee has retained beyond the age of 58 years but that is not the case herein. 96. This Court has considered the finding recorded by the learned Single Judge in the advertisement if there is no prescribed maximum age or maximum age, the same will be governed by the government decision, cannot be held to be correct proposition, as per the provision of the Act, 1981 having been considered by the Hon’ble Apex Court in the case of All Bihar Christian Schools Association and Anr. Vrs. State of Bihar & Ors. (supra), otherwise, the issue of interference with the internal affairs of the Managing Committee will be there which as per the law laid down by the Hon’ble Apex Court in the aforesaid judgment, is not permissible.” impugned order that in the 4. Relying on this judgment, he submits that the impugned order may kindly be quashed and appropriate direction may kindly be issued. 5. Per contra, the learned counsel appearing on behalf of the respondent State by way of drawing the attention of the Court to the paragraph no.9 of the counter affidavit submits that in light of the notification issued by the Department of School Education and Literacy (Directorate of Secondary Education) vide memo no.434 dated 01.03.2016 Chapter 7 provides qualification of Headmaster and procedure of appointment wherein Clause 10(I)(iv) states that, for direct appointment to the post of the Headmaster, the minimum age limit will be 35 years and maximum age limit will be 50 years. By way of referring this paragraph, he submits that in view of that the petitioner was over-age and rightly the impugned order has been passed. He submits that with regard to dispute in question one L.P.A is pending being L.P.A. No.221 of 2017. On above grounds, he submits that 4 W.P.(S) No. 5930 of 2023 there is no illegality in the impugned order and, as such, the prayer made in this petition may kindly be rejected and hence, this petition may kindly be dismissed. 6. In view of above, it transpires that the petitioner was appointed on the post of Headmaster vide Office order dated 25.03.2021 and even the objection was overruled and on explanation after meeting with the objection, the petitioner was appointed as such. 7. The dispute revolves around section 18 of the said Act, which is quoted as under: “18. Recognition of minority secondary schools.—(1) The schools declared a minority school under the provisions of the Bihar Secondary Education Board Act, 1976 (Bihar Act 25 of 1976) and the Bihar Secondary Education Board (Second Amendment) Ordinance, 1980 (Bihar Ordinance 82 of 1980) shall be deemed to have been recognised under the provisions of this Act. (2) The State Government may, by notification, recognise as a minority secondary school, such secondary school which has been established by a minority community on the basis of religion language for the purposes of meeting the educational or requirement and for the protection of culture of their section and which fulfils the prescribed condition of recognition. (3) The minority secondary school accorded recognition under sub-sections (1) and (2) shall be managed and controlled under the following provisions: (a) Every minority secondary school shall have a managing committee registered under the Societies Registration Act, 1862 and shall have written by-laws regarding its constitution and function. (b) According to the prescribed qualification laid down by the State Government for the teachers of the nationalised secondary schools and within the number of sanctioned posts, the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted under Section 10 of this Act. Provided that while considering the question of giving approval to appointment of any teacher under this sub-section the board shall only scrutinise as to whether the proposed appointment is in accordance with the rules laying down the qualification and the manner of making appointment framed by the State Government has been followed or not, and no more. (c) There shall be rules regarding the service conditions of 5 W.P.(S) No. 5930 of 2023 teachers of minority schools based on natural justice and the prevailing law, a copy of which shall be sent to the State Government. (d) The managing committee with the approval of the School Service Board shall have powers to remove a teacher, to terminate his services, to dismiss and to discharge him from service. Provided that for the purpose of approval any disciplinary action against the teacher by the managing committee, the Board shall scrutinise whether disciplinary proceedings have been in accordance with the rules and no more. (e) Mentally and physically incapacitated person shall not be appointed as teacher or non-teaching staff of the school. (f) No grant shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age. (g) Only such fees shall be charged from the students as are prescribed by the State Government. Prior approval of the State Government shall be necessary to charge higher fees than what is prescribed. (h) The schools shall be open to inspection on any working day by the authorised inspecting officers of the Education Department, the civil authority and authorised officers of Health Department. (i) It shall be their duty to obey instructions regarding admission and transfer of the students, discipline and punishment, records and accounts, curricular and cocurricular activity, rules regarding health and cleanliness issued or made by the State Government. (j) The State Government shall have powers to issue instructions not inconsistent with the provisions of Articles 29 and 30 of the Constitution for efficient management and for improving the standard of teaching and it shall be obligatory for the recognised minority schools to comply with them. (k) In the event of violation of this section and the rules made thereunder and the instructions issued under it, the said managing committee may make an application within sixty days of the date of the order to the officer authorised by the State Government, against the withdrawal of recognition or withholding or stopping grants and the authorised officer shall, after hearing the case, take his decision and it shall be binding.” 8. From the above provision, particularly, section 18(3)(b) of the said section, it is crystal clear that the prescribed qualification laid down by the State Government for the teachers of the nationalized secondary schools and within the number of sanctioned posts, the management committee of 6 W.P.(S) No. 5930 of 2023 the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted under section 10 of this Act. While considering the question of giving approval to appointment of any teacher under this sub section the board shall only scrutinize as to whether the proposed appointment is in accordance with the rules laying down the qualification and the manner of making appointment framed by the State Government has been followed or not, and no more. Sub-Section 3(f) of section 18 stipulates that no grant shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age. It is, thus, clear in light of sub section 3(b) of section 18 that the said provision speaks about the prescription of qualification laid down by the State Government for teachers of the nationalized secondary school to be applicable in the minority aided school. Sub section (3)(f) of section 18 contains a provision for not granting the benefit which shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age. The aforesaid provision, therefore, explicitly provides if read together that there is no barrier of age for appointment of Assistant Teacher in the minority aided school, rather only consideration at the time of granting approval which is to be looked into by the State Government, is regarding the qualification, so that there may not be any compromise with the educational standard by keeping the Assistant Teacher, even though they are having no educational qualification as required for appointment of Assistant Teacher in the Government owned school and the State Government in such circumstance will not approve for issuance of grant-in-aid. Sub section 3(f) of section 18 also clarifies that grant shall not be admissible for the purpose of release of salary of a teacher or non-teaching staff, if appointed or retained beyond 58 years of age, meaning thereby that if a candidate has been appointed either in the teaching capacity or non-teaching capacity, the grant 7 W.P.(S) No. 5930 of 2023 will not be admissible, if appointed beyond the age of 58 years or retained beyond the age of 58 years. 9. In view of above, it is crystal clear that the only restriction is there with regard to release of salary and this aspect has been set at rest in view of the judgment passed by the Division Bench in the case of Rizwana Khatoon v. State of Jharkhand and Others and analogous cases reported in 2023 SCC OnLine Jhar 1975[supra] upon which reliance has been placed by the learned counsel appearing on behalf of the petitioner. 10. In view of the above, the grounds taken by the learned counsel appearing on behalf of the respondent State is not acceptable and further on which reliance is placed by the learned counsel for the respondent State that has been further considered in the aforesaid case, and as such, the order dated 09.06.2023 issued under the signature of respondent no.2 [as contained in Annexure-4] is, hereby, quashed. 11. The respondent authorities concerned are hereby directed to take follow-up action at the end of the State Government to be taken within three months from the date of receipt/ production of a copy of this order. 12. 13. This petition is accordingly disposed of. Pending petition if any also stands disposed of accordingly. SI/, ( Sanjay Kumar Dwivedi, J.) 8 W.P.(S) No. 5930 of 2023