Jharkhand High Court
Kalpana Lodhiya vs State Of Jharkhand & Ors on 17 December, 2008
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2741 of 2008
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Kalpana Lodhiya Petitioner
Versus
State of Jharkhand and others Respondents
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CORAM: HON'BLE MR. JUSTICE D.G.R. PATNAIK
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For the Petitioner: Mrs. A.R. Choudhary and Mr. K.P. Choudhary, Advocates
For the Respondents: Mr. Rajeev Ranjan, G.A.
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CAV ORDER
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Reserved On: 10.12.2008 Pronounced On: __17.12.2008
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8. 17.12.2008Prayer in this writ application is for quashing the Memo No. 933 dated 22.5.2008 (Annexure-10) issued by the respondent no. 4, whereby the petitioner's services as a teacher in Shree Narbheram Hansraj Gujrati ME School, Jamshedpur which is a Linguistic Minority School, has been terminated. A further prayer is for a direction to the respondents to allow her all the consequential relief (s) including the arrears of salary with interest @ 18/% per annum which has not been paid to him since March 2007.
2. The sole ground for termination of the petitioner's services is, that the teachers training certificate obtained by her from Sister Nivedita College, Kolkata, was not acceptable since, the said college has not been recognized by the Government of West Bengal.
3. The question raised by the petitioner in this writ application is,
1. Whether appointment of the petitioner which was duly approved by the District Education Establishment Committee, Government of Bihar with effect from 29.1.1992 vide its order dated 17.6.1992, can be terminated retrospectively by applying the provisions of National Council for Teachers' Education Act, 1993 which came into force with effect from 1.7.1995?
4. The facts of the case lie in a narrow compass:
The petitioner was appointed as a temporary teacher in the aforesaid school with effect from 1.2.1990. Her services were regularized by the school on 27.4.1990. Since the school being a Government Aided Linguistic Minority School, her services were duly approved by the Establishment Committee of the Government on 17.6.1992 in the Matric trained pay scale with effect from 29.1.1992.
The petitioner had obtained her teacher's training certificate from Sister Nivedita College, Kolkata on 27.2.1990. The petitioner claimed that Sister Nivedita College, Kolkata is affiliated to the All India Education Society and is recognized by the Government of West Bengal.
Ever since the date of her appointment and the Government's approval of her services in the Matric trained pay scale, the petitioner has been rendering her services in the school continuously and her salary and other benefits used to be paid by the State Government. However, since March 2007, her salary was stopped.2
On 15.3.2008 vide Annexure-4, a show-cause notice was served on her by the Government Education Department, to explain as to why her services should not be terminated, on the ground that the certificate obtained by her from Sister Nivedita College, Kolkata is not valid and acceptable since the said institute is not duly recognized by the Government of West Bengal. In spite of her reply, she was served with a second show-cause notice on 9.5.2008.
A departmental proceeding was initiated against her. Against the order of initiation of the departmental proceeding, the petitioner filed the present writ application. During the pendency of this writ application, she was served with the impugned order dated 22.5.2008, whereby her services were terminated with retrospective effect.
5. Heard counsel for the petitioner and the counsel for the respondent State.
6. Assailing the impugned order, Mrs. A.R. Choudhary, learned counsel for the petitioner, would argue that at the time of obtaining her appointment in the school, the petitioner had disclosed all the particulars in respect of her educational qualification including the teachers training certificate obtained from Sister Nivedita College, Kolkata without any suppression or misrepresentation and after having accepted the certificate, she was given appointment in the school which was later approved by the Establishment Committee of the Government of Bihar with effect from 29.1.1992. It is further submitted that at the time of her appointment, there was no such Rule, which required that the teachers training certificate must be obtained from a Government recognized institution. Learned counsel argues further that the National Council for Teachers' Education Act, 1993 came into force with effect from 1.7.1995 and under the Act, it was made compulsory that the teachers training institute from where the certificate of teachers' training is obtained, should be a recognized institute as per the provisions of the Act. However, the provisions of the Act, according to the learned counsel, cannot be applied retrospectively. Learned counsel in this context, refers to and relies upon the judgment of this Court passed in the case of Sarbani Bose vs. State of Jharkhand (W.P.(S) 5412 of 2005).
7. A counter-affidavit has been filed on behalf of the respondent no. 4.
While admitting the fact that the petitioner was appointed by the Managing Committee of the school and subsequently, her services were approved by the District Education Establishment Committee, East Singhbhum, Jamshedpur in the Matric trained pay scale with effect from 29.1.1992 and since then, she has been rendering her services in the school, the stand taken by the respondent is that the petitioner had submitted her teachers training certificate which was obtained by her from Sister Nivedita College, Kolkata. It was later detected that the aforesaid college was not recognized by the Government of West Bengal Directorate of School Education. An explanation was therefore called for from the petitioner by the office of the District Superintendent of Education. The explanation offered by her being not found satisfactory, a second show-cause notice was served upon her followed by a departmental proceeding and thereafter, her services were terminated by the impugned order. It is further stated that certificate of teachers' training issued by the aforesaid institution being not a valid certificate for her appointment as a teacher on the Government sanctioned post and the petitioner having got herself employed in the Government service by suppressing the fact that the institute was not a Government recognized institute, her services were rightly terminated. Learned counsel places reliance upon the judgment passed by this court in the case of Swarn Kaur Vs. 3 State of Jharkhand (W.P.(S) No. 398 of 2003) and submits that the facts of the petitioner's case is similar to the facts of the Swarn Kaur's case (Supra) and also the case of Dilip Kumar Gupta (2005(5) JLJR 313).
8. As observed from the rival pleadings of the parties, the sole ground on which the petitioner's services were terminated is, that the certificate of teachers' training which she had obtained from Sister Nivedita College, Kolkata being not a valid certificate since, the said institute has not been accorded recognition by the State of West Bengal, the petitioner cannot continue as a Government teacher.
9. Such disqualification has been raised on the basis of the provisions of the National Council for Teachers' Education Act, 1993 which came into force with effect from 1.7.1995, by which it has been made compulsory that the institute from where the teachers have obtained certificate of teachers training, should be an institute recognized under the NCTE.
10. It is not disputed that the petitioner's appointment was approved by the District Education Establishment Committee in January 1992. On the date of her appointment in the year 1990 and even on the date when her services were approved by the District Education Establishment Committee, there was no Rule which required that the teachers training should be only from the Government recognized institution. After allowing the petitioner to serve for more than 16 years from the date of her appointment, her services cannot now be terminated by applying the provisions of NCTE Act retrospectively. In the case of Sarbani Bose (Supra), a similar issue came up before this court for consideration. This court had observed that appointment made prior to coming into force of the NCTE Act, cannot be annulled by application of the provisions of NCTE Act retrospectively.
11. The facts of the case of Swarn Kaur (Supra) are distinguishable from the facts of the present case in as much as, appointment of Swarn Kaur (Supra) was made after 1.7.1995 when the NCTE Act had already came into force and her appointment was cancelled on the ground that the certificate of teachers' training which she had obtained, was from the institute which was not recognized by the NCTE Act or by the Central Government or by any State Government. In the present case, the petitioner's appointment was admittedly much prior to the enforcement of the NCTE Act. For the same reasons, reliance placed by the learned counsel for the respondents in the case of Dilip Kumar Gupta (Supra) can be of no consequence in view of the fact that direction contained therein was not made applicable with retrospective effect.
12. In view of the aforesaid facts, I find merit in this application. Accordingly, the same is allowed. The impugned order of termination of the petitioner's services (Annexure-10), is hereby set aside. The respondents are directed to forthwith release the arrears of salary to the petitioner, which has been withheld from March 2007 together with all consequential benefits.
(D.G.R. Patnaik, J) Ranjeet/A.F.R.