Kumud Been Bandhu Sahay Tirkey vs State of Jharkhand and Others

Aparesh Kumar Singh, J.—Heard counsel for the parties. Originally, the writ petition was filed for grant of approval of her appointment and fixation of pay scale as an Assistant Teacher in R.C. Boys'' Middle School, Banabira, Simdega which is a Government aided minority school.

The petitioner applied against the advertisement issued on 10.02.2011 for a single post which fell vacant on the death of erstwhile teacher and got selected by the Managing Committee of the school vide appointment letter dated 23.03.2011 (Annexure-2). Thereafter, records of her appointment were sent for approval before the District Superintendent of Education, Simdega through Regional Education Officer, Simdega through letter dated 13.04.2011. Respondent No. 4-District Superintendent of Education, Simdega granted approval of appointment of the petitioner, subject to the condition that the salary will be paid only after her preposition statement is approved by the Director, Primary Education, Government of Jharkhand (Respondent No. 3).

During the pendency of the writ application, the proposal for approval of her appointment and preposition statement has been rejected by the Director, Primary Education through letter dated 03.08.2013 and addressed to Respondent No. 4. The grounds of rejection are that she had not obtained the necessary Teachers'' Eligibility Test qualification as required under the N.C.T.E. guidelines contained in the notification dated 23.08.2010. The said letter has been sought to be challenged in I.A. No. 3425/2014 by the writ petitioner stating that the aforesaid developments are very much connected to the original cause of action and have taken place during the pendency of the writ petition. According to the petitioner, she is having qualification of B.Sc./B.Ed. with more than 50% marks.

It is submitted by the counsel for the petitioner that Hon''ble Supreme Court in the Constitution Bench judgment rendered in the case of Pramati Educational and Cultural Trust (r) and Others Vs. Union of India (UOI) and Others, has squarely held that the provisions of Right of Children to Free and Compulsory Education Act, 2009 are inapplicable to the aided and unaided minority schools which are covered under Article 30(1) of the Constitution. Reliance has also been placed upon letter dated 22.05.2014 issued by the Director, Primary Education Directorate, Government of Jharkhand whereunder, respective District Superintendents of Education of different districts, have been asked to furnish the proposal for approval of appointment of teachers and pre-position statement who have been appointed in aided and unaided elementary schools (Annexure-10). Therefore, according to the petitioner, the matter requires to be reconsidered at their end once again.

Counsel for the State relies upon the counter-affidavit filed by them earlier on 18.06.2013 whereunder, a stand has been taken that the petitioner''s appointment cannot be approved as she has not passed the TET Exam which is mandatory requirement under the N.C.T.E. guidelines dated 23-08-2010. However, the order of rejection has been subsequently passed and referred to in their second counter-affidavit. They have referred to the order of rejection dated 03-08-2013 and relied upon the same ground that the appointment of the petitioner was not in conformity with the N.C.T.E. guidelines. Reliance has also been placed on the Act of 2009 which came into force with effect from 01-04-2010 whereunder, minimum qualifications have been laid down for eligibility and appointment as a teacher. Counsel for the respondents, however, does not dispute that by the judgment rendered in the case of Pramati Educational & Cultural Trust & Ors. (supra), it has been held that the Act of 2009 is inapplicable to the aided and unaided minority schools.

Having considered all aspects of the matter, it appears that the proposed amendments contained in LA. No. 3425/2014 deserves to be allowed as they have occurred during the pendency of the writ application and are squarely related to the cause of action raised earlier by the petitioner. They will form part of the record. Since the issue involved herein has been squarely decided by the judgment rendered by the Hon''ble Supreme Court in the case of Pramati Educational & Cultural Trust & Ors. (supra) and the proposal for approval of appointment of the petitioner and preposition statement have been refused by the respondent only on the ground that she does not have the qualification of having passed the TET Exam as prescribed under the N.C.T.E. Guidelines, the same cannot be upheld any longer. The matter therefore requires reconsideration at the end of respondent No. 3-Director, Primary Education, Government of Jharkhand. In such circumstances, it is deemed appropriate to remand the matter to respondent No. 3-Director, Primary Education, Government of Jharkhand to take a fresh decision on the question of approval of the petitioner''s appointment and her preposition statement in accordance with law and in line with the judgment rendered by the Apex Court in the case of Pramati Educational & Cultural Trust & Ors. (supra).

Needless to say, the order of rejection dated 03.08.2013 shall not come into the way of respondent No. 3 in taking a fresh decision in the matter. Let such a decision be taken within a period of twelve weeks from the date of receipt of a copy of this order.

The writ petition stands disposed of.