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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Aparesh Kumar Singh, Anubha Rawat Choudhary, JJ.
The State of Jharkhand and ors. - Appellants
Versus
Subhadra Jha, Son of Sri Jay Bhadra Jha and Anr. – Respondents
L.P.A. No. 684 of 2018
Decided On : 19-01-2021
Constitution of India, 1950 - Articles 29, 30, 30(1) and 32 - Bihar Non-Government Secondary Schools Act 1981 - Sections 2, 3, 18, 18(1), (2), (a), (b) (j) and 10 - Bihar Secondary Education Board Act, 1976 - Bihar Secondary Education Board (Second Amendment) Ordinance, 1980 - Societies Registration Act, 1862 - Section 10 - West Bengal Board of Secondary Education Act, 1963 - Teacher - Requisite Qualification - Regularization - Whether proposed appointment is in accordance with rules laying down qualification and manner of making appointment framed by State Government has been followed or not - Whether any of these clauses violate petitioners’ fundamental right guaranteed to them under Article 30(1) of Constitution - Whether Institutions right to select and appoint teachers is in any way affected by provisions of Rules of Management of Recognized Non-Government Institutions (Aided and Unaided), 1969 framed under provisions of West Bengal Board of Secondary Education Act, 1963 - Whether institution is a minority institution or otherwise and accordingly, argument that approval of a special institution by itself was indicative of institution giving up its claim of being a minority institution was rejected - Whether approval of appointments made by minority school in absence of a sanctioned post as on date of appointment of teachers was also considered – Held, Initial appointment of writ petitioner, though not against any sanctioned post, was neither irregular nor illegal and accordingly, petitioner ought to have been regularized/absorbed in vacancy which arose in year 2010 relating to sanctioned post - There is no dispute that initial appointment of writ petitioner was neither illegal nor irregular - Court is of considered view that said fact by itself is not sufficient to issue mandamus for regularization/ absorption of writ petitioner when respondent minority school has refused to recommend name of writ petitioner as a result of the selection process pursuant to advertisement for purpose of appointment on vacant sanctioned post - Impugned direction of writ court will amount to denial of right conferred under Article 30 of Constitution of India upon respondent minority school to administer minority institution and amounts to curtailment of right of respondent minority school to appoint teachers of their choice through appropriate selection process amongst those who possess eligibility and qualification prescribed - Court also finds that respondent-minority school has fully supported appellants in instant case as respondent minority school had refused to recommend name of writ petitioner for appointment against vacant sanctioned post after writ petitioner had participated in selection process pursuant to advertisement - Aforesaid distinction of present case on facts as compared to case decided by Hon’ble Supreme Court has an important bearing on constitutional rights of respondent minority school to appoint teachers of their own choice subject to regulatory provisions of aforesaid Act of 1981 - Selection and appointment of teachers is left to management of minority school; there is no interference with managerial rights of institution - In granting approval, School Service Board has limited power - Appointment of qualified teachers in a minority school is a sine qua non for achieving educational standard and better administration of institution - Clause (b) is regulatory in nature to ensure educational excellence in minority school - As a cumulative effect of aforesaid findings, judgment passed by learned writ court cannot be sustained in eyes of law and is accordingly set-aside - Appeal allowed.
JUDGMENT :
Anubha Rawat Choudhary. J
1. Heard Mr. Ashutosh Anand, learned Additional Advocate General-III appearing on behalf of the appellants.
2. Heard Mr. Rajendra Krishna, learned counsel appearing on behalf of the writ petitioner/respondent No.-1.
3. Heard Mr. Md. Jalisur Rahman, learned counsel appearing on behalf of respondent-Minority School, namely, Saint Francis High School, Poreyahat, Godda.
4. This appeal has been filed challenging the order dated 14.08.2018 passed by the learned writ court in W.P.(S) No. 1122 of 2011, whereby a direction has been issued to the respondents to consider the case of the writ petitioner for permanent absorption on vacant and sanctioned post of teacher in Sanskrit subject in the respondent’s school within a reasonable period preferably within a period of four months from the date of receipt of a copy of the order. The learned writ court while passing the aforesaid direction has recorded a finding that considering the series of the judgments of the Hon’ble Supreme Court as referred to in the judgment, the case of the petitioner fits into the eligibility condition for consideration for permanent absorption in view of the fact that the petitioner has rendered 14 years’ service on the date of advertisement having possessed the requisite qualification.
Arguments on behalf of the Appellants
5. Learned counsel appearing on behalf of the appellants has referred to para-83 of the memo of appeal which is a representation dated 09.08.2010 filed by the petitioner before the authorities and submits that there is no dispute that even as per the petitioner, the petitioner has been working in the respondent-minority school from 13.02.1996 on purely temporary basis and there is only one sanctioned post of Sanskrit teacher in the school which fell vacant on 31.01.2010 when one Surya Kumar Mandal, Sanskrit teacher superannuated and thereafter on 13.02.2010, an advertisement was issued for the purposes of appointment of Sanskrit teacher, in which, the writ petitioner also participated and the result was against the writ petitioner. In this representation, the writ petitioner has contended that there was no requirement to issue any advertisement and in fact the writ petitioner ought to have been absorbed by way of regularization and the school ought to have referred the case of the writ petitioner for approval by the Directorate of Education at Ranchi. It was also contended by the writ petitioner in this representation that from 01.02.2010 to 30.06.2010, the writ petitioner was assured by the school that his case will be referred for absorption and will be recommended for approval by the State, but the same was not done by stating that the petitioner has become over-aged and the petitioner does not have B.Ed degree and by raising one or the other excuse, the school has harassed him. The writ petitioner has also stated in the said representation that in the year 1996 when he was appointed in the school, the petitioner had the degree of D.P.E.D. which was duly recognized by the State Government and in the year 2008, his degree was de-recognized, but such decision of the State Government does not apply to him as his appointment was prior to 2008 and on the date of appointment, he had the requisite qualification.
The petitioner has also raised a grievance in this particular representation that in connection with his grievance, he met the Secretary of the respondent-Minority School who did not give any heed to his request and also met the District Education Officer, Godda, Director Secondary Education, Ranchi, but they also did not accede to his request and that they are trying to appoint some other person in connivance with each other.
6. The learned counsel for the appellants had taken specific instructions which has been recorded in order dated 22.09.2020 that there is neither any scheme for regularization of teachers working in minority institution nor any teacher in minority institution has ever been regularized by
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