AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. Ram Suresh Roy, learned senior counsel
along with Mr. Arjun Prasad Singh, learned counsel for the petitioner
and learned A.C. to G.P. 20 for the State.
The petitioner has moved the Court for being re-
instated in service after having been removed subsequent to him being
appointed on 24.04.2015 on compassionate ground.
The admitted facts of the case are that the father of the
petitioner died in harness as an Assistant Teacher and consequent
thereto, the petitioner was also appointed as teacher in Utkramit
Middle School, Bhagwanpur in the district of Bhojpur where he
joined on 30.04.2015. After having worked for seven months, his
services were terminated on the ground that he did not possess the
required qualification for being appointed on the said post. The
petitioner has the qualification of Intermediate pass with about 43%
marks, though in the Graduate Examination, he was successful and
has secured 1st Division. However, in view of the regulations relating
to appointment of such teachers requiring minimum 45% in
Intermediate for being eligible to be appointed, the petitioner clearly
does not cross the eligibility bar.
Learned counsel for the petitioner submitted that in the
present case the object for which the appointment was made is a vital
aspect and cannot be lost sight of. It was submitted that when the
appointment was on compassionate ground, that is, in view of the
guardian of the concerned person having died in harness and that too
for the purpose of getting over the immediate crisis faced by the
family, such schemes are enforced. In such background even with a
shortfall of about less 2% of the qualifying marks for eligibility, the
petitioner having worked for seven months without any complaint as
teacher moreso, as he is a Graduate having passed in 1st Division, it
cannot be said that the petitioner is not fit for such job. It was further
submitted that even the government has to be conscious of the object
to be achieved by such stipulation and there should be some
dynamism in the policy so that genuine cases do not suffer. In support
of his contention, learned counsel relied upon a decision of a Bench of
this Court in the case of The Rohtas District Non-Formal
Education Instructor Association and Ors. Vs. Sheo Bhajan
Prasad Diwakar and Ors. reported as 2017(1) PLJR 254, the
relevant being at paragraph no. 7.
Learned counsel for the State submitted that the
authorities or the State, in view of the present position in law, do not
have any discretion to relax the criteria as the statute itself provides
the minimum qualifying of at least 45% marks at the Intermediate
level and the petitioner admittedly not crossing the said 45%
threshold, the appointment not being proper, has rightly been
terminated.
At this juncture, learned counsel for the petitioner
submitted that even for the period of seven months which he had
worked he has not been paid any remuneration.
Having considered the matter, the Court is not in a
position to pass any positive order. However, if the petitioner makes a
representation before the respondent no. 4 with regard to his case
being considered for employment on any equivalent of even a lower
post for which such eligibility criteria does not come in the way of the
petitioner, the representation shall be considered, also in the
background that such employment is on compassionate ground for a
specific purpose and not a regular appointment where the petitioner
has to compete with others to enter into service. Thus, without
breaching the law, if the petitioner can be adjusted on any equivalent
or lower post, without there being any bar in law, the same shall be
considered and a reasoned order passed. At the same time, the
petitioner is also at liberty to either appear in the supplementary, if
there is provision, for improving his marks or to again appear for the
Intermediate Examination, if so permitted, to improve his marks,
which may make him eligible for appointment to the post on which he
has been initially appointed.
As far as non-payment of salary is concerned, since
the petitioner has worked on the post and discharged duties on such
post, the appointment not being on the basis of any fraud or
misrepresentation on his part, the authorities cannot deny payment for
such period.
Accordingly, a direction is issued to the respondent
no. 4 to ensure that the payment for the period the petitioner has
worked in the school is made to him within four weeks from the date
of production of a copy of this order.
The writ petition stands disposed off in the
aforementioned terms.