Martin Xess vs State of Jharkhand

Pramath Patnaik, J

The petitioner in this writ application, has sought for quashing the order dated 03.05.2006, as contained in Annexure-9 passed by the respondent

no.3, whereby the appointment of the petitioner has been held to be irregular, and direction has been issued to respondent no.6 to recover the salary

received by the petitioner. The petitioner has further prayed for quashing the order dated 27.05.2006 passed by the Secretary, Human Resources

Development Department, Government of Jharkhand (respondent no.2) holding the appointment of the petitioner to be irregular on the ground of over

age at the time of appointment, and for recovery of the salary received by the petitioner. The petitioner also prays for quashing the letter dated

12.05.2011 issued by the respondent no.7 (Annexure-11).

Shorn of unnecessary details, the brief facts, as revealed in the writ application is that the petitioner in pursuance to advertisement issued by the

respondent no.2, inviting applications for the post of Matric Trained Teachers applied for the said post and appeared in the written as well as interview

of the examination conducted by the respondent no.7. The selection committee was constituted comprising of representative of the Education

department besides the Secretary of the Managing committee, Principal of the School and other members of the Managing Committee. On the

recommendation of the selection committee, the petitioner was appointed for the said post. Accordingly, the petitioner joined the said post on

02.11.1998. The case of the petitioner was recommended for approval and on the basis of the recommendation, the District Education Officer, Gumla

vide memo dated 08.02.1999 approved the appointment of the petitioner, subject to verification of the genuine certificate. But, to the utter misfortune,

the respondent authority did not fix the pay scale of the petitioner. Admittedly, the respondent no.7, School is a minority school and Section 18 of the

Bihar, Non-Government Secondary School (Taking over of Managing and Control) Act, is applicable to the said institution. Since the pay of the

petitioner was not fixed, he approached this Court in W.P.(S) No.4979 of 2005 and the said writ petition was disposed of with direction upon the

respondents to dispose of the representation filed by the petitioner with speaking order in accordance with law. The petitioner filed representation

and on consideration of the representation, the arrears salary of the petitioner was disbursed, as evident from letter dated 17.03.2006, vide Annexure-8

to the writ petition. But to the utter surprise, vide memo dated 03.05.2006, the respondent no.3 informed the respondent no.6 regarding cancellation of

the appointment of the petitioner on the ground of over age and for imparting necessary instructions to respondent no.7 to recover the salary received

by the petitioner, which is impugned in this writ application. Thereafter, the respondent no.2 passed the impugned order dated 27.05.2006, vide

Annexure-10 and during pendency of the writ application, the services of the petitioner was terminated vide letter dated 12.05.2011 issued by the

School Management, vide Annexure-11, which is also impugned in this writ application. Being aggrieved by the aforesaid orders vide Annexures-9, 10

and 11, the petitioner left with no alternative has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of

his grievance.

Mr. A.K. Das, learned counsel for the petitioner has strenuously urged that the impugned order passed by the respondent vide Annexure-9, 10 and

11 have been passed in utter violation of principles of natural justice. Learned counsel has further submitted that there being no age bar for

appointment in minority institutions, these decisions taken by the respondents in coming to the conclusion that the appointment of the petitioner is

irregular, is not justifiable. Learned counsel for the petitioner further submits that the petitioner having possessed all the requisite qualification was

appointed by properly constituted selection committee and his services was duly approved by the competent authority and after lapse of more than 6

years, the respondent authorities in an arbitrary manner with undue haste, have impinched the appointment of the petitioner on the ground of over age

at the time of appointment, which is without any jurisdiction. Learned counsel for the petitioner in support of his contention has relied upon the decision

of the Hon’ble Apex Court reported in (2004) 6 SCC 224 (Brahmo Samaj Education Society and Ors. vs. State of W.B. and Ors.) more

particularly paragraph 7 and has also referred to the decision of this Court passed in W.P.(S) No.7741 of 2006 (Mithilesh Kumar Pandey vs. The

State of Jharkhand and Ors.).

Controverting the averments made in the writ application, a counter affidavit as well as additional counter affidavit has been filed by the

respondents. In the supplementary counter affidavit filed by the respondents, it has been submitted that since the teachers of the Government Aided

(Minority) Schools have been given service benefits similar to State Government teachers, the conditions/rules of the services which are applicable to

them, shall also be applicable to the Government Aided (Minority) School teachers. It has further been submitted that as per the resolution dated

04.02.1991, the upper age limit for appointment in Government jobs has been prescribed as 35 years for General, 37 years for BC/OBC, 38 years for

women (BC/OBC/SC) and 40 years for SC/STs. This circular was applicable at the time of appointment of the petitioner and as such, his appointment

was rightly declared as irregular as per Annexure-C to the supplementary counter affidavit. It has further been submitted that the petitioner was

appointed at the age exceeding 40 years which is contrary to the provisions of the applicable resolution dated 04.02.1991, which mandates the

maximum age limit for appointment. Therefore, the appointment of the petitioner is contrary to the applicable provisions.

Learned counsel for the State has reiterated the submissions made in the counter affidavit and assiduously submitted that Annexure-C to the

supplementary counter affidavit, unequivocally applies to the appointment of teachers in Non-Government Aided (including Minority) School because

the conditions of service and qualifications are same between Government School teachers and Non-Government Aided (including Minority) School

teachers. In that view of the matter, there is no illegality or impropriety in issuance of impugned order vide Annexures-9, 10 and 11.

Having bestowed my anxious consideration to the rivalized submissions and on perusal of the record, I am of the considered view that the petitioner

has been able to make out a case for interference, due to the following facts and reasons:

(I) Indisputably, the petitioner having undergone the process of selection, having requisite qualification was appointed on the post of Matric Trained

Teacher and the appointment of the petitioner has been duly approved by the competent authority subject to verification of the certificates. After

rendering about more than 6 years of service, like a bolt from blue, the appointment of the petitioner has been held to be irregular, vide order dated

03.05.2006 and order of recovery of salary has been passed. Subsequently, vide order dated 27.05.2006 the respondent no.2 held that the appointment

of the petitioner was not in accordance with law and directed for recovery of his salary received by the petitiioner. Subsequently, during pendency of

the writ application, impugned order of termination dated 12.05.2011 has been passed by the respondent no.7, the Management of the School, but the

short question that hinges for consideration, is as to whether there is any specific guidelines or rules which prescribes the maximum age for

recruitment in a minority institution. In this regard, it would be apposite to refer to Rule 18 of the Bihar Non-Government Secondary Schools (Taking

over of Management and Control) Ordinance 1980. The relevant provisions of Rule 18 (3) (f) is quoted hereinbelow:

“18 (3)(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.â€​

On perusal of the aforesaid provisions, there is no ambiguity or doubt, so far as teachers appointment for Minority Secondary School and there is no

minimum age prescribed for appointment of teachers in Minority Secondary School. Admittedly, the respondent no.7 (School) has been declared as

Minority School. Therefore, in absence of any specific provisions relating to minimum age of teachers of the minority school, the decision taken by the

respondents in holding that the appointment of the petitioner was irregular because of the over age at the time of appointment, appears to be bereft of

the provisions of law and is without jurisdiction. (II) On perusal of the supplementary counter affidavit, it appears that the respondents have been

labouring hard to refer to Annexure-C, the resolution no.1600 dated 04.02.1991, where maximum age for appointment has been mandated. But, on the

top of the said resolution, the appointment in the Government jobs has been mentioned. No specific reference has been made to the Non- Government

Minority institution, therefore, by no stretch of imagination, the Annexure-C to the supplementary counter affidavit, can be construed to be applicable

to the teachers of the minority institution.

As a logical sequitur to the aforesaid reasons, this Court is of the considered view that the impugned orders vide Annexures-9, 10 and 11 being

bereft of any provisions of rule or circular, cannot be sustained in the eye of law, accordingly, the same warrant interference by this Court.

Viewed thus, the impugned orders vide Annexures-9, 10 and 11 are quashed and set aside and the respondents are directed to take immediate steps

for reinstatement of the petitioner on the post in question, if the petitioner has not crossed the maximum age limit in the meantime, and the period from

the date of termination till the reinstatement in service, shall be considered for the purpose of continuity of service but the petitioner shall not be

entitled to the salary or back wages for the aforesaid period during which he has not worked, on the ground of no work no pay.Â

With the aforesaid direction, the writ application stands allowed.