Mahabir Singh And Ors vs State Of Jharkhand And Ors

Heard learned counsel for the appellants and the learned counsel for the Respondents.

The appellants are aggrieved by the impugned Order dated 20.01.2017, passed by the Hon’ble Single Judge, in W.P.(S) No. 2785 of 2013,

whereby, the Writ Court did not interfere in the order of termination of services of the appellants writ petitioners. The order regarding the recovery of

salary from the appellants, was quashed by the Writ Court.

The facts of this case lie in a short compass. An advertisement was issued inviting applications for appointment to the post of Primary School

Teachers, and in pursuance to the said advertisement, the Jharkhand Public Service Commission conducted the Examination on 27.05.2003. The

names of both the appellants were amongst the successful candidates and after thorough scrutiny of the testimonials and the other documents of the

appellants by the respondent authorities, they were issued the appointment letters on 04.06.2004 by the District Superintendent of Education, Bokaro,

pursuant to which, the appellants joined their respective posts and they were working continuously. It may be stated at this place that the appointment

of the appellants were made under the provisions of Jharkhand Primary School Teachers' Appointment Rules, 2002, (herein after referred to as the

'Appointment Rules'), in which the essential qualifications for appointment as a Teacher in a Primary School were prescribed, according to which the

candidates must have passed the matriculation or equivalent examination, and must have undergone training, i.e., either (i) two years' Teachers

Training, or (ii) B.Ed. / Dip. in Ed. / Dip. in Teach., or (iii) C.P.Ed. / Dip. P.Ed. The appellants were possessing the training certificate in Nursery

Teachers' Training and Creche Management from the Central Board of Secondary Education (CBSE), and according to the petitioners case, this

course is also of two years' duration, and this fact is not denied by the respondents. The fact, however, remains that the appointment letters were

issued to the appellants and they were allowed to join their respective posts, after due scrutiny of their testimonials by the respondent authorities,

including this certificate. It is not the case of the respondents that either the certificate of the writ petitioners is forged, or that the writ petitioners

made any concealment / misrepresentation at the time of their appointment with respect to their training certificate.

Subsequently, in the year 2013, a letter was issued by the Principal Secretary to the State Government, in its Department of Human Resources and

Development, which was addressed to the Deputy Commissioner, Bokaro, as contained in Memo No. 91 dated 23.02.2013, brought on record as

Annexure-8/1 to this memo of appeal, wherein it was stated that these appellants had been appointed on the basis of the training certificate of Nursery

Teachers' Training and Creche Management, issued by the CBSE, but the said certificate does not qualify the requirement of the qualification as

prescribed in the Appointment Rules. It was also pointed out that the appellants were appointed with the condition that if any fault was found in their

qualification, training certificate or other certificates, their appointment shall be deemed to be cancelled automatically. Accordingly, the Deputy

Commissioner, Bokaro, was directed that the services of both these appellants, be terminated. Pursuant to the said letter, a show-cause notice was

issued to the appellants and their salary was also stopped, which they challenged in W.P.(S) No. 2785 of 2013. During the pendency of the writ

application, the District Superintendent of Education, Bokaro, issued the Office Order as contained in Memo No. 1251, dated 18.06.2013, brought on

record as Annexure-10 to this memo of appeal, terminating the services of the appellants and they were also directed to deposit the entire

amount,which they had received as salary, in the Government Treasury.

The said order was challenged by way of filing Interlocutory Application No. 5604 of 2013 in W.P.(S) No. 2785 of 2013, in the aforesaid writ

application, and the amendment was allowed, permitting the petitioners to challenge that order as well. The writ application was finally adjudicated by

the Hon’ble Single Judge, and by impugned order dated 20.01.2017, the writ application was partly allowed, quashing only that part of the order, by

which, the petitioners were directed to deposit the entire amount of the salary received by them, but the Writ Court did not find any fault in the

termination of the services of the petitioners, on the ground that they were not having the requisite training qualification, as mentioned in the aforesaid

letter dated 23.02.2013. Aggrieved thereby, the writ petitioners have preferred this L.P.A.

Learned counsel for the appellants submitted that the impugned order passed by the Hon’ble Single Judge, cannot be sustained in the eyes of

law, inasmuch as, the petitioners were having the training certificate of Nursery Teachers' Training and Creche Management, issued by the CBSE,

which course is also of two years' duration, and it fully satisfied the requirement of the Appointment Rules, under which the appellants were appointed,

and which prescribed the teachers' training of two years, as one of the essential qualifications. Learned counsel submitted that after examining the

testimonials of the appellants, they were given the appointment letters by the respondent authorities, finding no fault in the training certificate of the

appellants, and it was only after nine years of their working, the fault was found by the Principal Secretary to the State Government, in the

Department of Human Resources & Development, that the training course undergone by the appellants was not qualifying the prescribed requirement

of the Appointment Rules. Learned counsel has also pointed out that while dismissing the writ application of the petitioners, the Writ Court had relied

upon a decision of the Division Bench of this Court, in L.P.A. No. 254 of 2013, (Md. Mukhtar Ansari Vrs. The State of Jharkhand & Ors.), decided

on 04.12.2013, in which also, it was held that Nursery Teachers' Training and Creche Management was not the required training qualification under

the Appointment Rules. Learned counsel pointed out that the said case related to the appointment being made in the District of Dumka in the year

2005, when for the first time this was pointed out by the District Authorities that Nursery Teachers' Training and Creche Management was not the

required training qualification under the Appointment Rules, and in view of the fact that Md. Mukhtar Ansari, who had also undergone the same

training course, he was not appointed. The writ application as well as the L.P.A. filed by him was dismissed by this Court, holding that Md. Mukhtar

Ansari was not having the requisite training qualification. It is submitted by the learned counsel that this decision cannot be applied to the appellants'

case, since the appellants had been appointed in the year 2004 itself, and were allowed to work throughout till 2014, i.e., for nine years and only

thereafter, their services were terminated on that ground.

Learned counsel for the State, on the other hand, has opposed the prayer, and submitted that there is no illegality in the impugned order passed by

the Hon’ble Single Judge, dismissing the claim of the appellants writ petitioners, as they were not having the required training qualification, and

thus, not entitled to continue in service. It is submitted by learned counsel that the case of these appellants is squarely covered by the decision of this

Court in Md. Mukhtar Ansari's case, and since it has been held that Nursery Teachers' Training and Creche Management is not the required

qualification of two years teachers' training as prescribed under the Appointment Rules, the appellants were not at all entitled to be appointed as

Teacher in a Primary School. Hence their services have been rightly dispensed with.

Having heard the learned counsels for both the sides, and upon going through the record, we find it difficult to hold that the decision of this Court in

Md. Mukhtar Ansari’s case shall apply to the facts of the appellants' case as well. Admittedly, the State Government is free to prescribe the

qualifications for appointment to the post, and if there is any ambiguity in the Appointment Rules, the State Government is also free to clarify the

ambiguity by way of issuing the executive orders. The State Government is fully within its powers to prescribe that Nursery Teachers' Training and

Creche Management course, conducted by the CBSC, does not qualify the prescribed qualification as given in the Appointment Rules. But at the

same time, this qualification which has been clarified after nine years of working of the appellants, cannot be applied to the appellants' case

retrospectively, to their detriment. Admittedly, at the time of appointment of the appellants in the year 2004, there was no such prescription by the

State Government. Admittedly, the appellants underwent the selection process as prescribed under the Appointment Rules, and there is no allegation

against these appellants that they had made any misrepresentation at the time of their appointment, or they had made any concealment of any material

facts about their training course. Admittedly, there is also no denial to the fact that the Nursery Teachers' Training and Creche Management course

conducted by the CBSE, is not a two years' training course.

In that view of the matter, if the appellants were appointed to their respective posts, taking into consideration their training certificates, and there

was no objection for nine long years during their working, that their training certificate was not in accordance with the prescribed Appointment Rules,

we are of the considered view that the appellants could not be removed from their service on that ground, after having served for such a long time. It

was only for the first time in the year 2005, that the district authorities in Dumka pointed out in the case of Md. Mukhtar Ansari that the said

certificate was not qualifying as the prescribed qualification as per the Appointment Rules, and when this objection was upheld by this Court, the

Principal Secretary of the State Government, in its Department of Human Resources & Development, in the year 2013 finally settled that the Nursery

Teachers' Training and Creche Management certificate, shall not be the prescribed qualification of two years teachers' training, as provided in the

Appointment Rules. The clarification in this qualification shall only be applicable prospectively, and not retrospectively to the detriment of the

appellants, who were duly appointed in the year 2004 itself. We are of the considered view, that the Hon’ble Single Judge has failed to appreciate

the facts of this case in its right perspective, and as such, the impugned Order dated 20.01.2017, passed by the Hon’ble Single Judge, in W.P. (S)

No. 2785 of 2013, cannot be sustained in the eyes of law.

The impugned order passed by the Hon’ble Single Judge shows that after the termination of their services, the appellants had not availed the

appellate remedy before the Divisional Commissioner by filing an appeal against the order of their termination. Though this is not a ground for not

interfering with the dismissal orders of the appellants by the Writ Court, but it would be appropriate to clarify at this stage, that the appellants had been

removed from their services, pursuant to the order passed by the Principal Secretary to the State Government, in the Department of Human

Resources & Development, and in that view of the matter, it would be only a futile exercise to file an appeal before the Commissioner, who shall

always be bound by the said order / letter of the Principal Secretary. As such, the non-availing of the appellate remedy before the Divisional

Commissioner shall not come in the way of the petitioners in approaching the Writ Court or the L.P.A Court.

For the foregoing reasons, we find and hold that the dismissal order of the appellants as contained in Memo No. 1251 dated 18.06.2013, issued by

the respondent, District Superintendent of Education, Bokaro, as also the letter contained in Memo No. 91 dated 23.02.2013, issued by the Principal

Secretary to the State Government, in the Department of Human Resources & Development, as contained in Annexures-8/1 and 10 respectively, to

this memo of appeal, cannot be sustained in the eyes of law. Both the aforesaid orders / letters, are hereby, quashed, and the impugned Order dated

20.01.2017, passed by the Hon’ble Single Judge, in W.P. (S) No. 2785 of 2013, is hereby, set aside. The respondents are hereby, directed to

reinstate the appellants to their respective posts forthwith, with all consequential benefits.

In the result, this Letters Patent Appeal is allowed. Consequently, the aforesaid interlocutory application also stands disposed of.