Jharkhand High Court
Asfia Bano vs The State Of Jharkhand on 25 September, 2018
Author: S.N.Pathak
Bench: S.N.Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.2835 of 2016
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Asfia Bano. ... ... ...Petitioner
-Versus-
1. The State of Jharkhand.
2. The Director, Primary Education, Jharkhand, Human Resources Development Department, Office of Telephone Bhawan, Dhurwa, P.O. & P.S. Dhurwa, Dist. Ranchi.
3. The District Superintendent of Education, Ranchi, P.O. G.P.O., P.S. Kotwali, District-Ranchi.
4. The Secretary/Headmaster A.Q. Ansari Urdu Middle School, Irba, P.O. Irba, P.S. Ormanjhi, Dist. Ranchi. ... ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner: Mr. Madan Mohan Pan, Advocate.
For the State: Mr. Bhawesh Kumar, S.C. II.
For the Res. No.4: Mr. A. Allam, Sr. Advocate.
Mrs. Nehala Sharmin, Advocate.
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06/ 25.09.2018 The petitioner has approached this Hon'ble Court with a prayer
for quashing the order dated 29.02.2016 as contained in memo No.794 issued under the signature of respondent No.3- whereby his claim regarding payment of salary due from November, 2010 to till date has been rejected.
Further prayer has been made to pay the arrears of salary due for the period from March, 2005 to November, 2005 and November, 2010 to till date as the same was withheld illegally and arbitrarily in utter violation of principle of natural justice as the petitioner was never given any opportunity to be heard.
2. The factual exposition as has been delineated in the writ petition is that the petitioner was validly appointed as an Assistant Teacher by the Management of Abdul Qayum Ansari Urdu Middle School, Irba Ranchi (in short A.Q.A.U. Middle School Irba), Ranchi which is a linguistic Government Recognized Minority Aided School and all expenses towards salary and also retiral benefits of the employee of the school in question are being funded and financed by the State Govt. from public exchequer through the District Superintendent of Education, Ranchi.
3. It is the case of the petitioner that she was appointed as an Assistant Teacher by the Management of Abdul Qayum Ansari Urdu Middle, Irba Ranchi in the year 1983 and since then she has been working and discharging her duties to the full satisfaction of the authority and was regularly paid salary from the date of appointment i.e. 14.02.1983, except for a few months, to October, 2010 by the respondent No.3-District Superintendent of Education, 2 Ranchi but payment of salary for working period i.e. from November, 2010 to till date has been withheld illegally and arbitrarily on the ground that she was untrained at the time of her appointment, contrary to his own decision as the respondent has himself paid salary from the date of joining i.e. from 14.02.1983 to October, 2010, knowing the fact that the petitioner was untrained at the time of appointment and also without considering the fact that petitioner has already passed B.Ed. examination from Ranchi University during service period. Aggrieved by the order dated 29.02.2016, by which payment regarding salary has been withheld, the petitioner has knocked the door of this Hon'ble Court for redressal of her grievances.
4. Learned Counsel for the petitioner submits that the State- Respondent are bound to follow their own policy decisions issued from time to time and deviation therefrom is an act of malice and bias in law. The impugned order dated 19.02.2016 as contained in Memo No.794 (Annexure-2) issued by the respondent No.3 is itself contradictory as he himself after scrutinizing validity of petitioner's appointment and also knowing the fact that at the time of appointment the petitioner was untrained has started payment of salary from the date of joining i.e. from 14.02.1983 till October, 2010. The action of the respondent No.3 against the petitioner who had been appointed validly as Urdu Teacher and payment of her salary from the date of her joining i.e. since more than 27 years of continuous service in Govt. Minority Aided Middle School is also violative of Article 30 (1) of Part-III of the Constitution of India.
5. Per contra counter-affidavit has been filed.
6. Learned Counsel for the respondents submits that Abdul Quiyum Ansari Urdu Middle School, Irba, Ranchi has been declared as Non-Government (minority aided) school by the Education Director, Bihar, Patna vide memo No.9393-56 dated 07.07.1977. As per letter No.3915 dated 15.11.1978, it was ordered that the approval of appointment to the untrained teacher appointed after 01.01.1971 shall not be given at any cost. The Commissioner of Education, Bihar, Patna has also issued a letter to the Director, Primary Education, Bihar, Patna vide letter No.1656 dated 20.08.1982 stating therein that the approval of appointment of untrained teachers, appointed after 15.11.1978 shall not be accorded. In pursuance of the Bihar Non-Govt. Elementary Schools (Taking over Control) Act, 1976 (Bihar Act 30/1976), the State Government has issued letter No.2501 dated 31.12.1982 by which a direction has been issued in clasue (iv) (kha) that the educational qualification for appointment to the post of Assistant Teacher will be at least Matric Trained.
3The approval of appointment of such untrained assistant teacher appointed after 01.01.1971 shall not be given. As per clause (iv) (Gha) of the letter No.2501 dated 31.12.1982, it was made mandatory that only trained teachers are eligible to be appointed on the post of assistant teacher in Govt. aided (including minority) schools from the District Panel, prepared for each year. Contrary to the provisions made in letter No.3915 dated 15.11.1978, letter no.1656 dated 20.08.1982 and notification No.2501 dated 31.12.1982, the School Managing Committee, Abdul Qaiyum Ansari Middle School, Irba, Ranchi has published the advertisement in the local newspaper without informing the competent authority on 23.12.1982 inviting application from the candidates having the qualification of only Matric, I.A. and B.A. Pass, who have previously invited to present for interview before the District Education Planning Committee. But without taking any interview before the District Education Planning Committee, Ranchi, the Secretary, School Managing Committee had appointed the petitioner and other two teachers on ad hoc basis on recommendation of a sub-committee on 12.02.1983, which was illegal.
7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that the case of the petitioner needs consideration. The reasons assigned in the impugned order is not at all tenable in the eyes of law denying the salary to the petitioner based on circular and notification No.2501 dated 31.12.1982 is not at all justified and not tenable in the eyes of law and as such is fit to be quashed and set aside on the following accounts.
i. Earlier there was direction to the respondents to consider the case of petitioner regarding payment of salary but the same has not been considered and has been rejected illegally and arbitrarily without taking into consideration the observation and direction of this Hon'ble Court in case of "Affan Quadri & Ors. Vrs. State of Jharkhand & Ors.", reported in 2012 (1) JCR 71 ii. It has to be taken into consideration that the Govt. has already approved the matric untrained scale as well as intermediate untrained scale etc. meaning thereby that if any teacher is appointed without having any B.Ed. Degree or diploma in teacher's training, then he or she will be entitled to untrained scale and no sooner a teacher acquires qualification by clearing Teachers' Training Examination, he or she will be entitled to trained scale, which may be a matric trained scale or B.Sc/B.A. 4 Trained Scale. Thus, it implies that initially there can be a legal and valid appointment of a teacher even though he was not a trained teacher. In the instant case, the petitioner has acquired training and his initial appointment was as an untrained teacher and thus he was entitled for salary of the untrained scale and that of the trained scale from the date he acquired training. The legal proposition is not in dispute. Reliance on the circular/notification dated 31.12.1982 bearing Instruction No.2501 of the respondents is not at all tenable as such act of the respondents is impermissible in the eyes of law as this circular was never placed before the floor of the House and to adopt a shortcut route by drafting the instant circular is impermissible in the eyes of law. Similar issue fell for consideration before the Hon'ble Patna High Court in case of "Krishnadeo Misra v. State of Bihar and others", reported in AIR 1988 Pat. 9 (F.B.) and ultimately the circular was quashed and set aside.
iii. The petitioner received salary all along as an untrained teacher and suddenly till October, 2010 it is only after that the salary was stopped after 27 years on the ground that the petitioner's appointment has not been approved is totally illegal, arbitrary and not tenable in the eyes of law.
iv. The circular dated 31.12.1982 has been issued under Section 8 of the Bihar Non-Governmental Elementary Schools (Taking over of Control) Act, 1976 (herein after to be referred to as 'the Act of 1976' for the sake of brevity). Section 8 of the Act of 1976 reads as under:-
"8. Power to remove difficulties.- If any difficulty arises in giving effect to the provisions of this Act, the State Government may take such action or pass such order as appears to it necessary for the purposes of removing the difficulty.
(iv) Thus, the aforesaid Section empowers the Government to pass such order as appears to be necessary for the purposes of removing the difficulty. Thus, whenever a new statute is enacted, there might be unforeseen difficulties in its actual and practical application and to remove such type of difficulties. Section 8 has been carved out in the statute. Only in 5 such an eventuality, Section 8 is to be invoked. But such a provision is not made as a cloak or a camouflage for colourable exercise of power for making statute, rules for which altogether different sections have been enacted and different procedures have been prescribed. Section 7 of the Act 1976 reads as under
"7. Power to make rules.- (i) The State Government may make rules not inconsistent with this Act for carrying out the purposes of this Act.
(ii) Every rule made under this Section shall be laid as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before expiry of the session immediately following both the Houses agree in making any modifications in the rule or both the Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." (Emphasis Supplied)
(v) It has been held by the Hon'ble Supreme Court in Medeva Upendra Senal v. Union of India, reported in AIR 1975 SC 797 in paragraphs 45 and 45 as under:-
"45. For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a "removal of difficulty clause" and the power conferred by it on the Government.
46 To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the Legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexities. Under conditions of extreme pressure, with heavy demands on the time of the Legislature and the endurance and skill of the draftsman, it is well nigh impossible to foresee all the 6 circumstances to deal with which statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law. This is particularly true when Parliament undertakes legislation which gives a new dimension to socio-economic activities of the State or extends the existing Indian laws to new territories or areas freshly merged in the Union of India in order to obviate the necessity of approaching the Legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time consuming amendatory process, the Legislature sometimes thinks it expedient to invest the executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective, without touching its substance. That is why the "removal of difficulty clause" once found upon and nicknamed as 'Henry VII Clause" scornful commemoration of the absolutist ways in which that English King got the "difficulties" in enforcing his autocratic will removed through the instrumentality of a servile Parliament, now finds acceptance as a practical necessity, in several Indian statutes of post-independence era." (Emphasis supplied).
(VI) Thus, it has been held by the Hon'ble Supreme Court that removal of the difficulty clause should be utilized only for the purpose of removal of the difficulties and it cannot partake the power of making the rules under Section 7 of the Act, 1976. Henry VIII clause cannot be used as a rule making power. This State has been bifurcated from the erstwhile State of Bihar from 15th November, 2000, and till today no rule has been framed under Section 7 of the Act, 1976. Every time, shortcut method has been adopted by the State authorities. The State of Jharkhand has its own Law Commission. It appears that the State authorities are not properly using its Law Commission for drafting of the new rules to be enacted under Section 7 of the Act. It is now high 7 time for the State of Jharkhand to have its own rules to be framed under Section 7 of the Act of 1976.
(VII) In fact, as per the decision rendered by the Full Bench of the Hon'ble High Court of Judicature of Patna in "Krishnadeo Mishra v. State of Bihar and others.", reported in AIR 1988 Pat. 9 (F.B). Four similar types of circulars under Section 8 of the Act of 1976 have been quashed and set aside only on the ground that Section 8 of the Act of 1976 empowers to remove difficulties which cannot be used as a power to make the rules. Section 8 is like Henry VIII clause which is to be utilized for altogether different purposes as stated herein above. Certain contingencies might be unforeseen when the statue is enacted. Only those type of eventualities can be resolved by Henry VIII clause, but the rule making power is altogether different which is envisaged under Section 7 of the Act of 1976. If the impugned circular bearing No.2501 dated 31st December, 1982 is looked closely, it gives even measurement of the classrooms. In Clause 2 (iii) (a) even the area of the land, etc. has also been given for the establishment of the primary as well as the middle school.
There are provisions for library, etc. also in the aforesaid circular. All these could not have been issued under Section 8 of the Act of 1976.
(VIII) Assuming without admitting that this has not been issued under Section 8 of the Act of 1976, but they are executive instructions issued under Article 162 of the Constitution of India, then also the same is not applicable to the present petitioners mainly for the reason that whenever any executive instruction is issued, unless they are issued under Article 309 of the Constitution of India, it cannot be given a retrospective effect. Only under the proviso of Article 309 of the Constitution of India, if the rules are enacted then only retrospective effect can be given. There is nothing to show that before issuing the circular in question which is dated 31st December, 1982, all these requirements of 8 making a rule in terms of proviso to Article 309 of the Constitution of India were satisfied.
8. From perusal of the records, it appears that the petitioner was appointed as an untrained teacher. Contention of the State is also not accepted by the Court mainly for the reason that there is circular issued by respondent-State on 2nd May, 1980 bearing No.1167 which empowers the appointment of a teacher who is untrained and he will be entitled to scale of untrained teacher. Untrained teachers' scale was in existence at the relevant time. Thus, the Government itself recognized the services of the untrained teachers by granting them scale of "Untrained teacher". It has been held by the Hon'ble Patna High Court reported in the case of Smt. Pratibha Singh & Anr. v. State of Bihar & Others, reported in 1988 PLJR 646 in paragraph 52(A) as under:
"52-A. Even from a letter dated 2nd May, 1980 being No.1167 issued by Sri Narendra Pal Singh, Special Secretary of the State of Bihar (Department of Education) to the Director (Elementary Education) Bihar, it appears that the State Government itself directed that all the trained teachers shall be paid salary in the scale of pay admissible to a matric trained teacher but those teachers, who were untrained would receive a salary admissible to a matric untrained teacher unless they obtain requisite training therefore. The said letter has been issued in view of the Government order bearing No.104 dated 23.01.1980 purported to have been issued under Section 3(4) (a) read with Section 8 of the 1976 Act. Evidently, therefore, the Government itself recognized the services of the untrained teachers. (XIV) One more reason has been given in the impugned order dated 20th January, 2011 at Annexure-2 to the memo of the petition that as the petitioners were appointed on unsanctioned post, their appointment was illegal. This contention is also not accepted by this Court mainly for the reasons that in the very same impugned order, it has been stated that subsequently there was re-appointment of the petitioners on the sanctioned post and thereafter they have been confirmed in the services by the respondents-9
Government itself. Petitioner No.1 was confirmed in the services or was approved in the services in 1989. Similarly, the services of the petitioner No.2 was approved w.e.f. 1st April, 1989 and the same is the case with petitioner No.3. So far as petitioner No.4 is concerned, she was appointed on 1st August, 1990 and from the very beginning, she was a Graduate and has cleared teachers training examination (B.Ed) and her services were also approved by the respondents-State authorities from the date of her appointment i.e. w.e.f. 1st August, 1990. All these teachers are legally competent and eligible to be appointed as teachers at the Primary Schools.
(XV) Moreover, right to get salary comes within the ambit of Article 300-A of the Constitution of India. Once such right is accrued, it cannot be taken away even by rule framed under Article 309 of the Constitution of India by giving retrospective effect. It has been held by this Hon'ble Patna High Court in "Smt. Pratibha Singh & Anr. v. State of Bihar & Others", reported in 1988 PLJR 646 in paragraph 58,62 and 63 as under:
"58- It is further well settled that a vested right cannot be taken away even by a rule framed under Article 309 of the Constitution of India by giving a retrospective effect thereto inasmuch as by such retrospective amendments the vested rights of an employee cannot be taken away. Such rule must also be reasonable, not arbitrary or discriminatory violating Article 14 and 16 of the Constitution of India.
62. Further, when a person is validly appointed he is entitled to receive salary. Such right to receive salary amounts to right to hold property. Such a right of property fall within Article 300A of the Constitution and as such the State Government while issuing an executive flat cannot deprive a person of his right to hold property.
63. Article 162 of the Constitution is subject to other provisions of the Constitution. It is, therefore, necessary also subject to Article 300A of the Constitution. Reference in this 10 connection may be made to M/s Bishambhar Dayal Chandra Mohan v. State of H.P. and others, AIR 1982 SC 33.
In R.N.Najundappa v. T. Thimmiah and another, AIR 1972 SC 1767: 1972 (2) SCR 799, it has been held that if an appointment is illegal and unconstitutional the same cannot be regularized by issuing an instrument under Article 162 of the Constitution of India. If an illegal appointment cannot be validated by an executive instruction, there cannot be any doubt that a legal appointment cannot be invalidated thereby." (Emphasis supplied) (XVI) It has further been held in the aforesaid decision in paragraph 3 as under:
"3 The various authorities including the Headmaster of the said school and the District Superintendent of Education recommended that the services of the petitioners be regularized but allegedly the respondents refused to do so."
(emphasis supplied) (XVII) It has been held by Hon'ble Patna High Court in 1982 (2) PLJR 512. It has been held in this decision that circular/letter being merely an administrative order could not be given retrospective effect.
(XVIII) One more peculiar facts has been pointed out by the petitioners that petitioners' school was established and administered by minority and therefore, as per Article 30 of the Constitution of India, they have right to establish and administer educational institutions which includes right to appoint the teaching staffs as well as non-teaching staffs. It has been held by the Hon'ble Supreme Court in Secy., Malankara Syrian Catholoc College v. T. Jose and others, reported in (2007) 1 SCC 386 in paragraph 19 as under: (emphasis supplied) "19. The general principles relating to establishment and administration of educational institution by minorities may be summarized thus:
i. The right of minorities to establish and administer 11 educational institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution:
(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees:
(c) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-
vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner 12 interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).
(XIX) Thus, right of minority to establish and administer educational institutions of their choice includes the right to appoint teaching as well as non-teaching staffs and therefore also, the circular bearing No.2501 dated 31st December, 1982 is not applicable to Kabiria Urdu Middle School, Mango, Jamshedpur. Therefore, reason given in the impugned order dated 20th August, 2001 (at Annexure-2) that the school has not selected teachers from the "Panel of teachers prepared by the State Authority is violative of Article 30 of the Constitution of India.
9. From perusal of the affidavit filed by the Principal of the said School, it appears that:
" Para 6- That the relevant point of time the trained teacher was not available so as per the letter of the Govt. dated 26.4.82 if the trained teacher was not available in science, Sanskrit and Urdu then an untrained teachers could be allowed to be appointed under the untrained pay scale and the same has happened in this case moreover appointment of teachers under the minority school were not required to be appointed vide letter of R.D.D.E. 1494-95 dated 31.3.79.
Para 7- That after the appointment the petitioner used to draw her salary under the untrained matric scale without any demur frp. D.S.E. Or the Director Primary Education. Now at the verge of retirement she cannot be denied salary as she was validly appointed. Para-8 That it is stated that the petitioner was appointed against the sanctioned post and received the salary for 27 years from the Govt. The present objection raised either by the D.S.E. Or the Director 13 Primary Education is contrary to the settled issue as decided by the Hon'ble High Court and reported in 2012 (1) JCR page 71. According to this judgment circular no.2501 dated 31.12.82 is neither a law within the definition of Article 13 of the Constitution of India nor it could have been issued in view of Section 8 of the Bihar Non-Govt. Primary School Act, of 1976 as the said provision has been legislated in order to remove the difficulty and not to create obstruction in a smooth functioning of the minority school. Moreover as per 1991 rule training was not mandatory which was enacted for the first time.
10. Judgments rendered by the Hon'ble Patna High Court before bifurcation of the State i.e. 15.11.2000 is binding on the State of Jharkhand and as such ratio of the judgments rendered in 1988 PLJR 646 and 1992(2) PLJR 512 is binding on the State of Jharkhand. It would be relevant to quote Section 84 of the Bihar Re-organization Act, 2000. Section 84 of the Bihar Reorganization Act, 2000 reads as under:-
"84 Territorial extent of laws. The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day."
11. The same view was reiterated in A.I.R. 1960, Gujarat 49 and thus in the light of Section 84 of the Bihar Re-organization Act, 2000. The aforesaid judgments rendered by the Hon'ble Patna High Court are binding. Similar view was reiterated by this Hon'ble Court in case of "Affan Quadri & ors. v. State of Jharkhand & Ors.", reported in 2012 (1) JCR 71.
12. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements, circular bearing No.2501 dated 31.12.1982 is hereby quashed and set aside as it is not binding at all in case of the petitioner. The order as contained in memo No. 794 dated 29.02.2016 based on the aforesaid circular passed by the District Superintendent of Education, Ranchi is hereby quashed and set aside. The petitioner is entitled for the salary of the period from March, 2005 to November, 2005 and November, 2010 to till date and as such the respondents are directed to pay the same within a period of eight weeks from the date of receipt of a copy 14 of this order taking into account that circular issued by the respondent- State on 2nd May, 1980 empowers the appointment of teacher, who is untrained and will be entitled to scale of untrained teacher as untrained teachers' scale was in existence at the relevant time. The Govt. itself recognizing the service of the untrained teachers cannot withhold the salary on the ground of aforesaid circular. Similar view has also been expressed by the Full Bench of Hon'ble Patna High Court which has been confirmed by the Apex Court with a direction that it was the duty of the State to get the teachers trained, who were appointed as an untrained teacher. In the instant case, the petitioner received salary for 27 long years and subsequently was also trained. Withholding of salary on the ground of circular of 1982 was not justified and hence it is fit to be quashed and set aside.
13. Accordingly, the Writ Petition stands allowed.
[Dr.S.N.Pathak,J.] P.K.S.