State Of Jharkhand And Ors vs Ohmati Poonam Toppo And Ors

Heard learned counsel for the appellant State as also learned counsel for the respondents writ petitioners.

The appellant State is aggrieved by the impugned order dated 3.10.2018, passed by the Hon'ble Single Judge, in W.P.(S) No. 1839 of 2017, whereby the order dated 20.2.2017, issued by the District Superintendent of Education, Garhwa, by which the services of the respondent writ petitioners were terminated from the post of Graduate Trained Teacher, in Elementary Schools in the State of Jharkhand, was quashed by the Hon'ble Single Judge, relying upon the order dated 16.8.2018 passed in W.P.(S) No. 2109 of 2017, passed in the same facts, as of this appeal, holding that the same was issued without any show cause notice to the petitioners.

Admittedly, the appointments of the respondents writ petitioners are governed by the Jharkhand Elementary School Teachers' Appointment Rules, 2012, (hereinafter referred to as the 'Appointment Rules of 2012'), and according to the original Rule-14 of the said Appointment Rules of 2012, 50% posts were reserved for the candidates, who were already working as para teachers, but with the rider that if sufficient number of para teachers were not available, the vacancy would be filled from the successful candidates of non-para teachers category. The respondents writ petitioners, being candidates from non-para teacher category, had applied for the said post, pursuant to an advertisement, issued in the year 2015, from the office of District Superintendent of Education, Garhwa. There is no dispute to the fact that the petitioners were having the required qualification for appointment for the said post and they had also applied for appointment in non-para teacher category. They were selected and appointed vide appointment order dated 14.12.2015. They joined their posts and worked for about 14 months, but without issuing any notice to them, their appointments were subsequently terminated, by the impugned order dated 20.2.2017, as contained in Annexure-6 to the memo of appeal, terminating the services of all the 9 teachers, who belonged to non-para teacher category, stating that they were appointed in the category of para teachers, de hors the Rules, as amended in the year 2014. The respondents writ petitioners, challenged their termination in W.P.(S) No. 1839 of 2017, whereas one another teacher challenged her termination in W.P.(S) No. 2109 of 2017, which was allowed by the Hon'ble Single Judge, by order dated 16.8.2018, on the ground that no show cause notice was issued to the petitioner prior to her termination and, accordingly, the same was quashed. Following the same order, writ application filed by the respondents writ petitioners, was also allowed.

Learned counsel for the appellant State submits that the impugned order, passed by the Hon'ble Single Judge, cannot be sustained in the eyes of law, for the fact that the aforesaid Appointment Rules of 2012 have been amended vide notification dated 22.10.2014, wherein, Rule-14 of the Appointment Rules of 2012 was amended to the effect that the posts belonging to para teacher category, even in the event of non-availability of sufficient number of candidates in that category, could not be filled by non-para teachers. Learned counsel further submits that since the Rules were amended prior to the appointment of the teachers, the appointments of the petitioners, were de hors the amended Rules and, accordingly, their services were terminated. It is, however, an admitted fact by the learned counsel for the appellant State that there was no misrepresentation or concealment on part of the candidates, rather the fault, if any, in the appointment of the teachers was on the part of the State authorities only. It is also an admitted fact that no show cause notice was issued to the teachers before termination of their services. Admittedly, the petitioners were appointed on 14.12.2015, and their services were terminated on 20.2.2017, after lapse of more than 14 months.

Learned counsel for the respondents writ petitioners, on the other hand, has submitted that the impugned order, passed by the Hon'ble Single Judge is perfectly justified, in view of the fact that no show cause notice was issued to the petitioners prior to the termination of their services and there was no concealment or misrepresentation on part of the petitioners at the time of their appointments.

Having heard learned counsels for both the sides and upon going through the materials available on record, we find that the respondents writ petitioners, being duly qualified for the post, for which, they were appointed, had been appointed after undergoing a regular selection process. No illegality is alleged in the selection process of the petitioners and the only ground of termination of their service is that they did not belong to para teacher category. The fact remains that the respondents writ petitioners had not even applied in that category, rather they had applied in non-para teacher category, and even after considering their applications, they were given the appointments in para teacher category, in view of the enabling provision in the Appointment Rules of 2012, ignoring its subsequent amendment in the year 2014, for which, the respondents writ petitioners cannot be held responsible in any manner whatsoever. The fact, however remains, that no show cause notice was ever issued to the writ petitioners prior to the termination of their services, on which post, they had been appointed as per the prescribed procedure, and in accordance with law, thus, acquiring a legally enforceable right to continue on that post, unless terminated in accordance with law.

In the backdrop of these facts, we find no illegality in the impugned order dated 3.10.2018, passed by the Hon'ble Single Judge, in W.P.(S) No. 1839 of 2017, quashing the termination order dated 20.2.2017 of the respondents writ petitioners.

There is no merit in this appeal and the same is, accordingly, dismissed. The aforesaid I.A., also stands disposed of.