Jharkhand High Court
The State Of Jharkhand Through The ... vs Smt Marium Suren And Ors on 26 September, 2014
Equivalent citations: 2014 (4) AJR 593
Author: D. N. Upadhyay
Bench: D. N. Upadhyay
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI A.C. (S.B.) No.05 of 2013 The State of Jharkhand, through the Director, Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi. ....... Appellant.
Versus Smt. Marium Suren & Ors. .......Respondents.
CORAM : HON'BLE MR. JUSTICE D. N. UPADHYAY For the Appellant : Mr. Rajesh Shankar, Advocate For Respondent No.1 : Mr. Bhanu Kumar, Advocate For Respondent No.3 : Mr. Ramit Satyender, Advocate st th CAV on 1 Sept., 2014 Pronounced on 26 Sept., 2014 D.N. UPADHYAY: This appeal is directed against the order dated 6th October, 2009 passed by Jharkhand Education Tribunal, Ranchi in connection with Case No.16 of 2009 (JET), whereby the Tribunal has directed the appellant, including the Managing Committee of the School, to maintain the service of Respondent No.1Smt. Marium Suren and to pay arrears of salary, which has been stopped since December, 2007; and order dated 31st July, 2010 passed by the Tribunal in connection with Execution Case No.1 of 2010 (JET), whereby salary and allowance of the appellantDirector, Primary Education, Government of Jharkhand, has been directed to be stopped for the month of August, 2010 and also for the subsequent months and remit the same to this Tribunal in monthly installments till such time the arrears of salary as also current salary remain due to be paid to Respondent no.1.
2. The brief fact, giving rise to the present case, is that Respondent No.1Smt. Marium Suren, wife of Mr. J. M. Topno, after going through the advertisement, published in the newspaper, applied for appointment on the post of Primary Teacher and after entering into selection process, she was appointed as Primary Teacher on 1st August, 1989 and joined her place of posting. The appointment of Respondent no.1 was approved by the District Superintendent of Education, Gumla 2 vide order dated 8th October, 1989. She did Teachers Training Examination in Session 198183 from S.P.G. Mission Mahila College, Ranchi, examination of which was conducted by the Bihar School Examination Board. The District Superintendent of Education, Gumla has also granted senior scale of pay with effect from 2008.
3. Respondent no.1 had been regularly discharging her duties, but all of a sudden her salary was stopped from the month of December, 2007 and it was brought to the notice that at the time of her appointment, she was overage by three months eight days and that was not condoned/waived by the Deputy Director, Primary Education. Thereafter, she filed a petition before the Jharkhand Education Tribunal, Ranchi, which was registered as Case No.16 of 2009 (JET).
4. The appellant and other respondents appeared and filed their stand on the issue, but the learned Tribunal has come to a conclusion that after extending service for such a long period that too after lapse of about 19 years, the Director, Primary Education, Jharkhand has no right to stop her salary on the ground that at the time of her appointment, she was overage and it was not condoned by the competent authority. The appellant and other respondents were directed to pay arrears of salary from December, 2007 and also the current salary to Respondent No.1.
5. When the order was not complied with, Execution Case No.1 of 2010 (JET) was registered in which by order dated 31st July, 2010 direction was given to the Treasury Officer as well as Government to stop the salary of the appellant from August, 2010 and remit the same in installment to the Tribunal till the payment of arrears of salary from December, 2007 and current salary to the Respondent No.1. Hence, this appeal.
6. The appellant has assailed the impugned judgment on the ground that appointment of Respondent No.1 was illegal because she was overage at the time of her appointment and it was not condoned/waived by the competent authority i.e. 3 Regional Deputy Director of Primary Education. The District Superintendent of Education, Gumla has no right to condone or waive the overage of Respondent No.1. The Jharkhand Education Tribunal has no jurisdiction to pass order against the Government. The application filed by Respondent No.1 was time barred and the delay in filing petition before the Tribunal was not condoned. The order dated 31st July, 2010 passed in Execution Case No.1 of 2010 (JET) is too harsh, beyond jurisdiction and arbitrary in nature. In view of the above, the impugned orders dated 6th October, 2009 and 31st July, 2010 are liable to be set aside. In any case, if the salary is required to be paid to Respondent No.1 from the month of December, 2007, that is to be paid by the School Managing Committee and they are responsible for the illegal appointment, if done by them.
7. On the other hand, learned counsel, appearing on behalf of Respondent no.1, has vehemently opposed the argument and submitted that this appeal is hopelessly time barred, which has been preferred after lapse of more than three years. It has been submitted that no limitation period for presenting the appeal against the order passed by the learned Tribunal is specifically mentioned in the Jharkhand Education Tribunal Act, 2005, but it does not mean that an appeal can be preferred at any time at the choice of the appellant. Even if the statute does not provide limitation period for presenting an appeal, the same is to be presented within a reasonable time. Respondent No.1 had not concealed anything at the time of her appointment and she had placed all her certificates, including age certificate. Since she was found the best candidate amongst others who appeared in the interview, her appointment was considered by the School Managing Committee and a request for condoning the overage was also made. The District Superintendent of Education, Gumla had approved the appointment of Respondent No.1 and she had been receiving all monetary benefits, including senior pay scale of a teacher. After lapse of about 19 years, the Government awakened and stopped the 4 salary of Respondent No.1 from the month of December, 2007. Jharkhand Education Tribunal has rightly decided the issue in favour of Respondent no.1 and passed the impugned order, directing the appellant and other respondents to pay the salary to Respondent No.1 from the month of December, 2007. It is apparent that When the appellant and other respondents did not pay heed to the order passed in Case No.16 of 2009 (JET), an execution proceeding, being Execution Case no.1 of 2010, was initiated in which order was passed on 31st July, 2010.
8. Last but not least, it has been submitted that the appointment of Respondent no.1 was not illegal, rather it was irregular, which can be corrected at any point of time. After lapse of about 19 years, the Government cannot say that appointment was illegal and the Respondent no.1 is not entitled for any salary and she is not required to be maintained in service. There is, thus, no merit in this appeal and the same is liable to be dismissed and the order passed in Case No. 16 of 2009(JET) may be directed to be complied with immediately.
9. Learned counsel for Respondent no.3 has submitted that in a Government Aided Minority School, the power of appointment of teachers and staff and other administrative powers to run the school is vested with the School Managing Committee or with the Governing Body of the School, but the salary of the teachers appointed against sanctioned post is being paid by the Government by way of grantinaid. The appointment of Respondent No.1 was brought to the notice of District Superintendent of Education, Gumla and it was, accordingly, approved. After appointment, Respondent No.1 gave her joining and she was discharging her duties. The salary was being paid to the Respondent no.1 from the grantinaid given by the Government of Jharkhand. The fact that she was overage at the time of her appointment was also brought to the notice of the District Superintendent of Education and a request to condone the same was made. The sum and substance of submission advanced on behalf of Respondent No.3 is that the 5 Managing Committee of the School supports the contentions of Respondent No.1.
10. Having heard both sides, the admitted situation, which has surfaced, is that the Government Aided Minority Educational Institutions, run by any registered society or by any organization, are vested with independent right to manage the affairs of the School and the Managing Committee is vested with the power to select suitable teachers and staff, but the Managing Committee of the School shall have to follow the Rules, procedure and general letters/circulars of the Government. Since Government Aided Minority School(s) has/have been receiving salary of teacher(s) and staff from the Government, the appointment of teachers and staff by the Managing Committee in such school(s) against sanctioned post(s) can only be done, if he/she/they deserve(s) required qualification and fulfill other conditions. Admittedly, the Government has no say in the appointment process of a teacher in Government Aided Minority School, but eligibility for appointment of a teacher and other conditions is to be complied with according to rules of the Government and then only salary of such appointed teacher can be paid by the Government. The minority recognized institutions are under obligation to follow the statutory provisions even if no specific statute is thereto to govern. The teachers appointed in such minority recognized institutions are discharging their duties to impart education, which is certainly towards fundamental rights i.e. Right to Education. The aid by the Government is given to such recognized minority institutions only when they follow the rules, norms and procedure of the Government.
11. It is admitted case of the School Managing Committee Respondent no.3 that Respondent No.1, at the time of her selection for the post of teacher, was overage and according to rule, she was not eligible for appointment on the said post unless overage is condoned by a competent authority of the Government and the competent authority of the Government is 6 Regional Deputy Director of Education. In this context, the appellant has referred to the Bihar NonGovernment Elementary Schools (Taking Over of Control) Ordinance, 1976. Clause(TA) of the said Ordinance deals with age limit for appointment, which reads as under: "(TA) NIYUKTI KE LIYA UMRA SIMA NIYUKTI KE LIYA ABHYARTHIYON KI ADHIKTAM UMRA 30 VARSH AVAM NIYUNTAM UMRA 18 VARSH KI HOGI. KSHTRIYA SHIKSHOPNIDESHAK SE AAYU KSHANTI KARAKAR ADHIK UMRA KE PRASHIKSHIT ABHYARTHI BHI NIYUKT HO SAKENGE. ANUSUCHIT JATI AVAM ANUSUCHIT JANJATI AVAM MAHILA UMIDWARON KO ATIRIKT 5 VARSHON KI CHHUT DI JAYAGI. 35 VARSH SE ADHIK UMRA RAHNE PAR INKI BHI UMRA KSHANTI KSHETRIYA SHIKSHOPNIDESHAK DWARA KI JA SAKEGI AUR USKE BAD NIYUKTI HO SAKEGI."
12. The Respondent Nos.1 and 3 has not denied the procedure for condoning the age, but submitted that the District Superintendent of Education, Gumla has approved her appointment. At this juncture, it is necessary to mention that the competent authority is Regional Deputy Director of Education to condone the age, if a candidate is otherwise found suitable for the post of teacher. It is also apparent from Office Order No.4557 dated 15th December, 1976 that the Regional Deputy Director of Education is the competent authority to condone the age.
13. When the said fact came to knowledge of the Government that appointment of Respondent no.1 to the post of Primary Trained Teacher was done without condoning the overage and against the rules, salary of Respondent nos.1 from the month of December, 2007 was stopped on the ground that her appointment was illegal and she is not entitled to maintain in service. In this context, learned counsel for the appellant has referred to and relied on the judgment of the Hon'ble Patna High Court dated 7th October, 2010 in CWJC No.1564 of 2002 [Ravindra Pandey Vs. The State of Bihar & Ors.]. The said judgment of the Hon'ble Patna High Court has been rendered following many decisions of the High Courts as well as Hon'ble Supreme Court. The Constitution Bench of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors., reported in (2006)4 SCC 1, has held that "long 7 continuance in irregular or illegal public employment cannot sustain a claim to permanence". In the said judgment, it has been further held that "an illegal appointee has no right to continue on the post, even if he may have remained in service for a considerable length of period".
14. Learned counsel further referred to and relied on the decision of this Court in the case of Shiv Charan Hansda Vs. State of Jharkhand & Ors., reported in 2006(3) JCR 467 (Jhr.). In Para6 and 7 of the said decision, it has been observed as under:
"6. It is, therefore, clear that the appointment of the petitioner itself was illegal violating the prescribed rules and directions of the Education Department, Government of Jharkhand. It has been categorically stated in the counter affidavit that before passing the impugned order of removal of the petitioner from service, the petitioner was given opportunity of hearing. The petitioner had appeared before the District Superintendent of Education, Dumka ad put his grievances. The D.S.E., after hearing him, took final decision which was communicated to the petitioner by the impugned letter dated 20.1.2005.
7. It is well settled that when the initial appointment on the post of teacher itself is illegal, merely because a person continuously worked for some time, it does not give him indefeasible right to claim the said post."
15. In view of the above, it is not disputed that on the date of appointment, Respondent no.1 was not eligible for the post due to overage and overage was not condoned by the Regional Deputy Director of Education. When this fact came to the knowledge of the Director, Primary Education, the District Superintendent of Education was directed to furnish explanation as to how he had given approval of appointment of Respondent no.1. In reply thereto, the District Superintendent of Education had replied, stating therein the fact that the candidate was overage was not brought to his notice at the time of giving approval of the recommendation of the School Managing Committee. It is clear that the appointment of Respondent No.1 was against the rules, supposed to be followed by the Managing Committee in appointment of a teacher and, thus, the appointment was illegal.
816. So far as the jurisdiction of the Tribunal is concerned, Section 8 of the Jharkhand Education Tribunal Act, 2005 permits the Tribunal to deal with such matter. Section 8 of the said Act reads under: "8. Jurisdiction, power and authority of the Jharkhand Education Tribunal Save as otherwise expressly provided in this Act, the Jharkhand Education Tribunal shall exercise on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all the Courts (Except the Jharkhand High Court and Supreme Court of India) regarding:
(i) Matters concerning recruitment to any post or posts and the matters related therewith in connection with the affairs of the educational institution;
(ii) All matters concerning the service conditions of employees of the educational institution;
(iii) Grievances of the employees against the management of the educational institutions;
(iv) Grievances of the guardians and parents of students against the management of the educational institutions regarding teaching standards, fee structure infrastructural facilities, development works and allied matters related thereto;
(v) Such matters relating to educational institutions as may be referred to the Tribunal by the State Government by notification from time to time."
17. In context of the above, learned counsel has referred to and relied upon the judgment reported in 2010(3) JLJR 403 [Mohammad Badruddin Vs. The State of Jharkhand & Ors.]. It has been submitted that the Government Aided Minority Schools do not come under the purview of the Government according to Article 12 of the Constitution of India and, therefore, the Tribunal is having jurisdiction to deal with the matter
18. The word "Educational Institution" has been defined in Section 2(n) of ChapterI of Jharkhand Education Tribunal Act, 2005. Section 2(n) of the said Act reads as under: "2. Definition
(n) "Educational Institution" means any educational institutions engaged and administered by private management located within the State of Jharkhand"
19. In this context, learned counsel for Respondent no.1 has drawn attention towards preamble of the Jharkhand Education Tribunal Act, 2005, but in absence of any specific provision the preamble will not give much help. Therefore, as per Sections 8(a) 9 to 8(d) of the said Act, the Tribunal has got jurisdiction to deal with the issue relating to educational institutions managed and administered by private management. Section 8(e) of the said Act deals with such matters relating to educational institutions, if referred by the Government, can also be taken care of.
20. Here in the instant case, there is no doubt that it was the direction of the Director, Primary Education, Human Resources Development Department, Government of Jharkhand (appellant) to stop the salary of Respondent No.1, since her appointment was not done in accordance with rules and direction prescribed by the Government. With the aid of the Government, salary of the teachers of recognized minority institutions/schools is being paid, if appointment is done in accordance with the rules and direction of the Government. Since the order of the Government of Jharkhand, which was issued through the Director, Primary Education, was under
challenge, there is no doubt that it was the order of the State, which cannot be challenged before the Tribunal and Section 8 of the said Act does not give jurisdiction to the Tribunal to deal with such matter. The legality and correctness of any order passed by the Government, even relating to recognized Government Aided Minority Schools, run by a private management, cannot be challenged and no direction to the Government could be given and it is beyond the jurisdiction of the Tribunal.
21. The appellant has raised the point of limitation and submitted that salary of Respondent No.1 was stopped from the month of December, 2007, but the case was filed before the learned Tribunal in the year 2009. As per Subsection (2) of Section 10, the period of limitation is six months from the date of issuance of the order. Respondent No.1 had preferred application before the Tribunal after expiry of six months and the delay was not condoned and, therefore, the claim of Respondent no.1 was time barred and it should not have been entertained.10
On the other hand, learned counsel, appearing on behalf of Respondent No.1 has also challenged the point of limitation against presentation of appeal by the appellant. It has been contended that even if no limitation for presenting an appeal is specifically indicated in the Jharkhand Education Tribunal Act, 2005, it has to be filed within a reasonable time. In this contest, the submission of learned counsel for the respondent is appreciated on the point that cause of action was not limited only to the month of December, 2007, when the salary was stopped, but it was having current effect when the salary of subsequent month was not paid and other monetary benefits for which Respondent no.1 was entitled were not given. In context of the above, learned counsel has referred to and relied upon the decision reported in (2012)3 SCC 563 [Postmaster General & Ors. Vs. Living Media India Limited & Anr.].
In that view of the matter, argument advanced by the appellant has no leg to stand and the application of Subsection (2) of Section 10 of the Jharkhand Education Tribunal Act, 2005 does not appear to be attracted and the application of the Respondent No.1 was well within the limitation period.
In Section 15 of the said Act provision of appeal is indicated, but period of limitation within which appeal is to be preferred is not there. Since the said Act is silent about limitation for presenting an appeal against an order passed by the Tribunal, the reasonable time can always be considered from the facts and circumstances of each and every individual case. In this context, since the Tribunal has passed the impugned order against the appellant and Respondent no.2 beyond its jurisdiction, as envisaged in Section 8 of the said Act, I do not feel inclined to deal with the matter of limitation for presenting an appeal in this particular case.
22. In view of the discussions made above, this appeal is, thus allowed and the impugned order dated 6th October, 2009 passed in Case No.16 of 2009(JET) and order dated 31st July, 2010 passed in Execution Case no.1 of 2010(JET) by the Tribunal in 11 respect of the appellant and Respondent No.2 stand set aside.
So far as the claim of Respondent No.1 with regard to payment of salary for the period for which she has discharged her duty in the School is concerned, that may be maintained against the Managing Committee of the SchoolRespondent No.3.
(D. N. Upadhyay, J.) Sanjay/AFR