Sulami Soy vs State of Jharkhand

Heard Mr. Afaque Ahmad, learned counsel for the petitioner, Mr.Anuj Burman, learned A.C. to S.C.V appearing for the RespondentState as well

as Mr. Bhanu Kumar, learned counsel for the Respondent No. 5.

In the accompanied writ application, the petitioner has sought for the following reliefs: -

(a) For quashing of the order dated 19.12.2008, issued by the Director, Secondary Education, Human Resources Development Department,

Government of Jharkhand (respondent No. 3).

(b) For holding and declaring that the aforesaid action of the concerned respondents is completely illegal, arbitrary and against the law considering that

the petitioner after being duly appointed as Assistant Teacher has rendered long service w.e.f. 1.4.1996.

(c) For direction upon the respondents to grant and make payment of arrears as well as current salary to the petitioner as the petitioner has been

working in the School w.e.f. 1.4.1996, but she is not getting salary without any fault on her part.Â

The brief facts, as has been revealed in the writ application are that in pursuance to the advertisement, published by the Secretary, Lutheran Girls

High School, Govindpur, Ranchi in local newspaper ‘Ranchi Express’, dated 23.11.1995, inviting application for appointment of Graduate trained

girl’s teacher in the subject of English including Geography for one post, the petitioner fulfilling the eligibility criteria made her application alongwith

others for the aforesaid post and thereafter written examination and interview was held by the Selection Committee and after participating in the said

written examination and interview, the petitioner stood first and as such, the Managing Committee in its proceeding dated 12.03.1996 took a decision to

appoint the petitioner against the vacant post of Assistant teacher of English subject in the scale of Rs.1640-2900/-. In pursuance to the appointment

letter dated 20.03.1996, the petitioner gave her joining on 1.4.1996 and the petitioner’s joining was duly accepted in the aforesaid school.

Thereafter, the concerned District Education Officer, Ranchi and the District School Inspectress, Ranchi have been informed by the Secretary of the

said School for necessary action. It has been further stated that the District Education Officer, Ranchi vide letter dated 22.04.1997 wrote to the

Secretary, School Service Board, Patna with regard to approval of the aforesaid appointment of the petitioner and in pursuance of the aforesaid letter,

the Secretary, School Service Board, Patna vide letter dated 24.3.1999 sought some notification and besides other relevant documents, the District

Education Officer, Ranchi vide letter dated 25.06.1999 provided the rectified report to the Secretary, School Service Board, Patna on obtaining the

same from the School Management and in spite of the aforesaid fact, the decision regarding approval, remained pending before the said authority.

Since the matter regarding approval of the petitioner’s appointment was being delayed, the petitioner filed writ application being W.P. (S) No.

2724 of 2002. However, in the meantime, vide letter dated 6.7.2002, the Secretary of the said School terminated the petitioner’s services. The

petitioner withdrew the aforesaid writ application on 31.08.2006 and moved before the Jharkhand Education Tribunal in Case No. 68/2006 (JET)

challenging the aforesaid illegal termination order passed by the Secretary of the said School and the learned Tribunal vide order dated 10.01.2007 has

quashed the termination order dated 6.7.2002 and directed to make payment in favour of the petitioner in the same scale in which the petitioner was

appointed. The School Management preferred A.C. (S.B.) No. 07 of 2007 and L.P.A No. 232 of 2007 before this Court and vide orders dated

26.04.2007 and 06.07.2007, the said AC (SB) and the L.P.A. respectively were dismissed by this Hon’ble Court. Thereafter, the petitioner gave

her joining in the aforesaid School on 26.07.2007 and since then she has been continuing there and is imparting teaching work to the satisfaction of the

school authorities, which is evident from the certificate dated 5.2.2011, issued by the Secretary of the said School and inspite of the fact that the

petitioner’s appointment was made after following due procedure against the vacant and sanctioned post, the application for approval of her

appointment has been rejected by the Director, Secondary Education, Government of Jharkhand, Ranchi vide order dated 19.12.2008. As evident from

order dated 3.9.1991, there are 13 sanctioned posts of the teachers in Lutheran Girls High School, Govindpur, Ranchi and the petitioner’s

appointment was made on 20.03.1996, which clearly transpires that at the time of appointment of the petitioner, there remained sanctioned post in the

aforesaid School. The petitioner has repeatedly made representations and has recently on 23.12.2010 represented before the Director, Secondary

Education, H.R.D. Department, Government of Jharkhand through proper channel for approval of her services and payment of arrears of salary, but

no action has been taken up till now. Left with no alternative, efficacious and speedy remedy, the petitioner has been constrained to approach this

Court under Article 226 of the Constitution of India for redressal of her grievances.Â

Learned counsel for the petitioner has vehemently submitted that the action of the respondents in not granting approval to the appointment of the

petitioner on the post in question is completely illegal, arbitrary and against the law, since the petitioner was duly appointed and has been continuously

working in the aforesaid school to the satisfaction of the School authority. Learned counsel further submits that the respondents are bound to grant

approval to the appointment of the petitioner, as her appointment was made after following due procedure by the School management and further to

grant and make payment of arrears of salary as well as current salary to the petitioner. Learned counsel further submits that the action of the

respondents is discriminatory and violative of Articles 14 and 21 of the Constitution of India.Â

Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents, wherein, it has been specifically

submitted that petitioner was appointed on the post of Assistant Teacher of English Subject in Lutheran Girls High School, Govindpur, Karra, Khunti

after advertisement in newspapers and has been working w.e.f. 01.04.1996. However, it is pertinent to mention here that the petitioner was not

appointed as per the provisions of Resolution No. 2064 dated 04.10.1980 issued by the Education Department, Govt. of Bihar which clearly provides

that in each subject there will be only one teacher and since Smt. Shivam Sanga was already appointed and working against the post of English subject

as Assistant Teacher w.e.f. 01.04.1984, therefore, the Secretary of the said School terminated the service of the petitioner vide letter dated

06.07.2002. It has been further averred that the aforesaid School is a Non-Government aided Minority School, which is managed by School

Management Committee is also authorized to appoint teachers following the Government Rules and Regulations. In this case the School Management

Committee has clearly violated the Rules and gone beyond its power by appointing the petitioner as Assistant Teacher in English subject. Therefore,

the services of the petitioner cannot be approved by the Government and hence, liability for payment of working period of the petitioner lies upon the

School Management Committee.Â

Learned counsel for the Respondents-State apartfrom reiterating the submissions made in the counter affidavit, has submitted that the prayer of the

petitioner is not sustainable and maintainable in the eye of law and is fit to be dismissed.

Repudiating the contentions made in the writ application, a counter affidavit on behalf of the Respondent No. 5 has been filed. In the counter

affidavit, it has been, inter alia, submitted that the petitioner submitted her joining on 26.07.2007 after dismissal of L.P.A. No. 232 of 2007 on 6.7.2007

and she is continuously working and discharging her duties as Assistant Teacher in English Subject. It has been further submitted that as per Order

No. 687 dated 3.9.1991 issued by the Deputy Director, Education (Secondary Education), Human Resource Development Department, Bihar a total

of 13 posts have been sanctioned for Lutheran Girls High School, Govindpur and presently out of thirteen sanctioned posts, seven teacher are working

and six posts are lying vacant, and if the case of the petitioner is considered, then total number of working teacher comes to eight and presently one

post of English Subject is vacant with effect from 1.7.2017 on account of retirement of Shiban Sanga. It has been further averred that vide meeting of

Managing Committee of the said School, convened on 2.5.2018, it was resolved to adjust the petitioner against the 10th vacant post of Assistant

Teacher and grant approval of her appointment from the initial date of joining. It is an admitted fact that the petitioner gave her first joining on 1.4.1996

and thereafter her services was terminated on 8.7.2002 and again after favourable orders from the Jharkhand Education Tribunal and this Court, the

petitioner submitted her joining on 26.7.2007 and since 26.07.2007, the petitioner is continuously imparting teaching in the capacity of Assistant

Teacher and as a matter of fact, since there was bonafide confusion in the vacancy position relating to various subjects, the petitioner was issued

appointment letter by the Secretary, Managing Committee in which admittedly there was no fault on the part of the petitioner.Â

Learned counsel for the Respondent No. 5 has fairly submitted that in view of the decisions of the Hon’ble Jharkhand Educational Tribunal,

judgment of this Hon’ble Court and also in view of the ratio laid down by the Hon’ble Apex Court, if the petitioner is absorbed and her service

is regularized, the Managing Committee of the School has no objection to that course of action.Â

After hearing the learned counsel for the respective parties and on perusal of the records, this Court is inclined to accede to the prayer of the

petitioner due to the following facts and reasons : -

(i) The petitioner’s appointment was made after following due procedure against the vacant and sanctioned post.

(ii) The Jharkhand Education Tribunal in Case No. 68/2006 (JET) vide order dated 10.01.2007 has quashed the termination order dated 6.7.2002 and

directed to make payment in favour of the petitioner in the same scale in which the petitioner was appointed and the A.C. (S.B.) No. 07 of 2007 and

L.P.A No. 232 of 2007 preferred by the School Management before this Court were respectively dismissed vide orders dated 26.04.2007 and

06.07.2007.

(iii) Vide meeting of Managing Committee of the said School, convened on 2.5.2018, it was resolved to adjust the petitioner against the 10th vacant

post of Assistant Teacher and grant approval of her appointment from the initial date of joining.

(iv) The petitioner gave her first joining on 1.4.1996 and thereafter her services was terminated on 8.7.2002 and again after orders from the Jharkhand

Education Tribunal and this Court, the petitioner submitted her joining on 26.7.2007 and since 26.07.2007, the petitioner is continuously imparting

teaching in the capacity of Assistant Teacher and as a matter of fact, since there was bonafide confusion in the vacancy position relating to various

subjects, the petitioner was issued appointment letter by the Secretary, Managing Committee in which admittedly there was no fault on the part of the

petitioner.

In view of the aforesaid discussions made in the foregoing paragraphs and as a logical sequitor, the impugned order dated 19.12.2008, issued by

the Director, Secondary Education, Human Resources Development Department, Government of Jharkhand (respondent No. 3) is hereby quashed

and set aside. The respondents are hereby directed to grant and make payment of arrears as well as current salary as the petitioner has been working

in the School w.e.f. 1.4.1996 excluding the period from 08.07.2002 to 25.07.2007 on the principle of ‘No work No Pay’.Â

With the aforesaid observation and direction, the writ petition stands allowed.   Â