Lalan Rai vs State of Jharkhand and Others

Sujit Narayan Prasad, J.—Petitioner has approached this Court for quashing order dated 22.2.2006 issued by the Director, Department of Human Resources Development whereby and whereunder the authorities have come to the conclusion that the appointment of the petitioner as Teacher prima-facie irregular and as such, order has been passed to forthwith cancel the appointment of the petitioner by following due procedure.

It has been submitted on behalf of petitioner that Gurunanak Middle School, Sakchi, Jamshedpur is declared as a minority school vide letter No. S1K 301130180 Shi. 3290 dated 21.11.80. It has further been submitted on behalf of petitioner that he has been appointed as Assistant Teacher in the said school by the order of the Secretary, Gurunanak School, Sakchi with effect from 23rd June, 1981 as per Service Rule of School Managing Committee. Thereafter, District Superintendent of Education, Chaibasa has issued a certificate on 20.8.1981 to the effect that in the district of Singhbhum there was no trained teacher in the waiting list for appointment of teachers in Primary Schools. The petitioner has been appointed by respondent No. 5 and the respondent No. 4 vide order dated 24.10.1981 which was duly approved. Thereafter, petitioner started discharging duty. It has further been submitted that his salary was fixed from 23.6.1981 to October, 1984 in Matric untrained pay scale and subsequently, vide order passed by the respondent No. 4 vide letter No. 3523 dated 25.9.1986 and letter No. 4558 dated 4.5.1988 whereby and whereunder a request has been made to the Director, Primary Education, Bihar, Patna for training of the petitioner. However, the petitioner was not sent for training of B.Ed. It has further been submitted on behalf of petitioner that the services of the petitioner has also been approved by respondent No. 2 as would be evident from Annexure-5 to the writ petition.

It has further been submitted on behalf of petitioner that the petitioner was discharging his duty but all of a sudden, he was in receipt of a communication dated 22.2.2006 whereby and whereunder appointment of the petitioner had been directed to be cancelled by the authorities after following due procedure. Petitioner thereafter, immediately approached this Court and vide order dated 25.09.2006 direction was passed by this Court to file counter affidavit with interim order to maintain status quo. Hence, the petitioner is continuing in service.

It is also grievance of the petitioner that the ground taken by respondents in the communication dated 22.2.2006 that since the petitioner was untrained and as such, his appointment is irregular, absolutely an illegal decision in view of the fact that at the time of appointment there was no requirement of getting training to the teachers working in the minority school.

Further submission has been made that the respondents have relied upon one notification issued on 31.12.1982 whereby and whereunder in Clause 2(iv)(B) it has been provided that teacher who has already been appointed on or after 1.1.1971 their services cannot be regularized if they are not Matric trained.

Further submission has been made that the notification dated 31.12.1982 has been issued in terms of the power conferred upon the competent authority under Section 8 of Bihar Non-Government Elementary School (Taking over of Control) Act 1976. Since the said notification has been issued on 31.12.1982 the said notification will not be implemented so far as the school in question is concerned because the said school has already been given a status of minority school on 21.11.80 much prior to the date of issuance of notification dated 31.12.1982.

It has further been submitted that even the same will be taken to be true then also the same will not be affected so far as the case of the petitioner is concerned because any notification or executive instruction can not be given its retrospective implementation which will adversely effect the interest of the parties.

Learned counsel appearing on behalf of respondents has submitted that the appointment of the petitioner was made against the sanctioned post of Assistant Teacher in the school by the Secretary, School Managing Committee. It has further been submitted that at the time of appointment of petitioner he was not a trained teacher as such, in view of notification dated 31.12.1982 the appointment of the petitioner cannot be said to be regular since in the said notification it has been provided that the Assistant teacher appointed on or after 1.1.1971 without any training their status cannot be given recognition. Hence, the authorities had come to the finding that as the petitioner was not holding training certificate hence, appointment of the petitioner is not regular and as such, the impugned order dated 22.2.2006 has been issued.

Heard the parties.

The question which is to be decided is that the petitioner since have got no training certificate at the time of appointment in terms of notification dated 31.12.1982 hence, the appointment of petitioner is regular or not?

It is pertinent to see notification dated 31.12.1982 which is annexed as Annexure A to the counter-affidavit.

On perusal of the notification dated 31.12.1982 it appears that the said notification has been issued in exercise of power conferred under Section 8 of Bihar Non-Government Elementary School (Taking over of Control) Act 1976. From perusal of Section 8 of the Act, 1976 it appears that the power has been conferred upon the authorities to take appropriate decision in case of any defects. The respondents in exercise of the said power issued the notification dated 31.12.1982.

The submission on behalf of petitioner that the notification dated 31.12.1982 has been issued and prior to the said notification the school in question where the petitioner has been appointed has already got its status of minority vide letter No. S1K 301130180 Shi. 3290 dated 21.11.80 and as such, the notification dated 31.12.1982 can not be given retrospective implementation because retrospective implementation of any enactment can be made by legislature or the Parliament and the authorities have got no power to issue such notification.

I find force in the arguments advanced on behalf of petitioner that the notification dated 31.12.1982 can not be given retrospective implementation as such, the condition mentioned therein cannot be implemented so far as the school in question is concerned and since the petitioner has been appointed in minority school, as such, the condition mentioned in notification dated 31.12.1982 is not applicable.

The further submission on behalf of respondents regarding condition as mentioned in Clause 2(iv)(B) that the minimum qualification of teachers will be Matric trained and the teachers appointed on or after 1.1.1971 without any training cannot be given recognition.

As has been dealt with in preceding paragraphs that notification dated 31.12.1982 since an executive instruction, the same cannot be given retrospective effect.

Admittedly, the petitioner has been appointed on 23.06.1981 in a recognized minority school. The condition mentioned in clause 2(iv)(B) is not applicable with respect to the petitioner because of the simple reason that said authority has got no power to make any order giving effect of any decision which adversely affects the rights of the petitioner.

Counsel appearing on behalf of petitioner relies upon a judgment rendered in the case of P. Mahendran and others Vs. State of Karnataka and others, which is being quoted hereinbelow:

"It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure." 19. Considering the fact that the petitioner is in service from 23.6.1981 and since the condition mentioned in the impugned order dated 22.2.2006 of having no training certificate is based upon the notification dated 31.12.1982,. and since the said notification cannot be given retrospective effect hence, order impugned dated 22.2.2006 is contrary to the law.

In view of above, impugned order dated 22.2.2006 is not sustainable in the eye of law hence, it is quashed.

Writ petition accordingly allowed.