Jharkhand High Court
Amin Ansari vs State Of Jharkhand & Ors on 27 September, 2013
Equivalent citations: 2014 (1) AJR 583
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1056 of 2011
Amin Ansari ... Petitioner
Versus
State of Jharkhand & Ors. ... Respondents
CORAM : HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : Mr. S.K. Pandey, Advocate
For the Respondent : J.C. to G.P. II.
6/27.9.2013Heard learned counsel for the parties.
It is the case of the petitioner that he is entitled to be regularized on the post of Headmaster after having completed 7 years of service as such from the date of his appointment in the Project High School, Makka at present District Lohardaga.
According to him, he was appointed as Incharge Headmaster by the Managing Committee before taking over of the aforesaid school as a project school by the State Government from 1.1.1982. He along with others had approached this Court earlier in W.P.S. No. 3589 of 2007. The said writ petition was disposed of by directing the concerned authority to consider the case of the petitioner along with others within stipulated time. By a reasoned order dated 13.5.2010, Annexure4 contained in Memo No. 2647, his case has been rejected on wholly arbitrary and illegal grounds.
Learned counsel for the petitioner submitted that the petitioner is entitled for regularization on the post of Headmaster as has been granted to similarly situated person vide judgment rendered in the case of Kamdeo Prasad Shahi Vs. The State of Jharkhand & Others in W.P.(S) No. 2700 of 2006, Annexure9 dated 12.12.2008 as also that of one Sarayu Prasad Roy, in whose favour, such a reasoned order was passed by the Director, Secondary Education, Jharkhand, Ranchi on 15.3.2008, Annexure8 contained in memo no. 832. He has also submitted that this Court in W.P.(S) No. 547 of 2009 (Ayesha Kumar Vs. The State of Jharkhand & Ors.), directed the Director, Secondary Education, Human Resource Development Department, Government of Jharkhand to take a decision in the matter of regularization in similar circumstances. Learned counsel for the petitioner has also relied upon a Division Bench judgment of the Patna High Court rendered in the case of Khirod Mahto Vs. The State of Bihar & Ors. reported in [2009 (1) PLJR 655]. In view of the ratio of the aforesaid judgments, it is submitted that the impugned order dated 13.5.2010 is wholly unsustainable in law.
The respondents in their counter affidavit have justified the impugned order dated 13.5.2010, Annexure4, on the ground that he was appointed as Assistant Teacher for teaching Economics in Project School, Makka, Lohardaga, on honorarium of Rs. 10/ per day. It is also stated that though the petitioner was appointed as a Headmaster by the Managing Committee, the State Government has recognized the services of the petitioner as Assistant Teacher on adhoc basis and now after lapse of 25 years, such a claim for regularization on the post of Headmaster cannot be accepted. The petitioner has accepted the State Government's decision and worked as Assistant Teacher since long and suddenly his claim, as above, cannot be said to be legally sustainable.
Rejoinder has also been filed on behalf of the petitioner once again relying upon the judgments rendered in the case of other similarly situated persons as also order passed by the Director, Secondary Education, Jharkhand, Ranchi, in favour of one Sarayu Prasad Roy, Annxure8 series.
I have heard learned counsel for the parties and have gone through the relevant materials on record including the impugned order. The facts of the present case as are borne out from the pleadings show that the petitioner was appointed as Incharge Headmaster by the Managing committee of the Project School, Makka within the then district Ranchi (now Lohardaga) by an office order, issued by the Secretary, Managing Committee dated 31.12.1981. The services of the petitioner are said to have been taken over by the State Government from 1.1.1982, which is evident from Annexure2, issued by the Regional Deputy Director, South Chotanagpur Division, Ranchi. The petitioner is said to have possessed a qualification of B.A. trained as per Annexure2 itself, from which, date of appointment appears as 1.1.1982. The petitioner, thereafter, had approached this Court in W.P.(S) Case No. 3589 of 2007 along with others with a claim that he was senior most teacher and was entrusted with the duties of office of the Headmaster of the School and had been discharging the duties as Incharge Headmaster of the respective school. Reference was made to the Bihar NonGovernment Secondary Schools (Taking over of Management and Control) Act, 1981 (for short the 'Act') under which, all private schools, which were taken over by the Government under the provisions of the Act, the services of such teachers, who were employed in the taken over schools, were accepted and recognized as Government teachers. However, the provisions of the Act did not provide for automatic absorption on the post of Headmaster. A stipulation was incorporated in the Act under which, the Headmasters of any school, who have completed more than 7 years of service, became eligible for consideration for regularization with effect from the date on which the institution/School was taken over by the State Government. The petitioner was working and discharging the functions as Incharge Headmaster of the respective school much prior to the date of taking over of the schools by the Government. In such circumstances, after hearing counsel for the parties, the writ petition was disposed of with a direction to the concerned authority to decide the case of the petitioner therein within stipulated time.
Thereafter the impugned order contained at Annexure 4 dated 13.5.2010 has been passed. The case of the petitioner has been rejected inter alia on the ground that the appointment of regular Headmaster of the said schools was to be undertaken by the department itself after following prescribed procedures. In absence of regular appointed Headmaster, a working arrangement duly approved by the Regional Deputy Director of Education on recommendation of the District Superintendent of Education, Government Jharkhand, Incharge Headmaster of the school, could have been undertaken. However, such procedure, was not followed and they were not authorized by the District Education Officer to function as Incharge Headmaster. The services of these persons, whose representations were decided including the petitioners, were to be counted from the date of recommendation of the Vidyalaya Sabha Board. Therefore, the contention of the petitioners and others was not found to be worthy of being entertained.
Perusal of Annexure9 dated 12.12.2008 passed in W.P.(S) No. 2700 of 2006, however, indicates that the very same issue had been raised before this Court and was squarely decided also taking into account the judgments of the Hon'ble Apex Court rendered in the case of one A.K. Pradhan and Susheela Devi as well as in the case of Smt. Nayan Rai. The relevant extracts of the judgments at Annexure 9 is quoted hereunder;
6. The grounds on which the petitioner's representation has been rejected as appearing from the impugned order are:
(i) That after taking over of the school under the Project Scheme, it is the concerned Department of the Government alone who has authority to appoint the permanent Headmaster of the taken over Schools. The Managing Committee of the School did not have any power whatsoever to appoint any person as the Headmaster of the School.
(ii) Since after taking over of the school in 1982, the post of headmaster of School remained vacant, the petitioner was given the responsibility to function only as an Incharge Headmaster of the School since 20.8.1986.
(iii) The judgments in the case of A.K. Pradhan and Susheela Devi relate to rules applicable to the teachers of Government secondary Schools and not to schools taken over under the Project Scheme and hence the Judgments not applicable to the teachers of the Project Schools.
7. Undisputedly, under the Project Scheme of the State Government, the petitioner's school was taken over by the State Government under its Department of Secondary Education and the school was given a status of a Government School. The teachers of all such Project Schools having been considered as Government teachers, they were paid their salary by the Government. The rules relating to Bihar Nationalized Secondary School was also adopted in respect of the project School Teachers by the Government Notification dated 1.6.1999 and the same was also adopted by the State of Jharkhand.
8. A similar controversy was raised by the respondent State of Bihar n the case of Smt. Nayan Rai Vs. State of Bihar in C.W.J.C. No. 6023 of 1998 before a Bench of the Patna high Court. The fact of the case was that the petitioner Smt. Nayan Rai was appointed as a founder teacher of a Non Government School. She being the senior most teacher of the school, the managing Committee of the School had appointed her to the post of Headmaster of the School Vide Government Order dated 12.2.1985, the school was selected and taken over by the Government under the Project Scheme. After having completed more than seven years experience as a senior teacher in the school, she staked her claim for being regularized as the Headmistress of the School. Relying upon the judgments of the Supreme Court in the case of A.K. Pradhan (Supra), the High Court had directed the respondents to consider the case of the petitioner therein, for her appointment to the post of Headmistress in the concerned school or any other High School in accordance with law. The direction was accordingly carried out by the respondents.
It cannot, therefore, be said that since the petitioner was a teacher of the Project School, the ratio in the judgment of A.K. Pradhan, Susheela Devi and Smt. Nayan Rai would not apply to the petitioner's case.
9. From the facts noted above, even though the petitioner may have been appointed as a Headmaster Incharge of the School by the Managing Committee and even though he may have continued to function as such after the school was taken over by the State Government but his candidature could not have been considered by the State Government in view of the fact that admittedly he had not possessed the requisite qualification of possession of a B.Ed. degree and teachers training. He had acquired such degree and training in 1986 whereafter he was given to act as an Incharge Headmaster. The petitioner having continued to function as Incharge Headmaster for more than seven years from the date of his appointment as such, he was certainly eligible for consideration for his regularization for the post of Headmaster at least with effect from the date on which he had completed seven years of service after having completed the teacher training and appointed as Incharge Headmaster. From the impugned order, it does appear that the respondent no. 2 has not considered the petitioner's case on the ground that the rules as applicable to the teachers of Government schools did not apply to the Project School Teachers. When as pointed out by the petitioner by several instances, other teachers in similar circumstances were given the benefit of their regularization in the post of Headmaster on their completing seven years of teaching experience from the date of taking over of the school, the petitioner could not be discriminated and denied of the same benefit. Since admittedly, he being the senor most teacher of the school and having been appointed as an Incharge Headmaster of the school from 1986. He was certainly eligible for regularization on the post of Headmaster on his completing seven years of teaching experience since after 1986.
10. It is now informed that the petitioner has though prayed for his regularization on the post of Headmaster of the School but he has since retired from his service on 29.9.2002. Even though, the petitioner has now retired but he was entitled for being regularized to the post of Headmaster at least seven years from the date of his official appointment by the concerned authorities of the respondents as Incharge Headmaster of the School since 20.8.1986.
11. In the light of the above discussion, the respondents are directed to treat the petitioner as regular Headmaster of the School from the date of his completing seven years from the date of his official appointment as Incharge Headmaster of the school on 20.8.1986 and to pay him all the consequential benefits on the post of Headmaster which accrue to him, till the date of his retirement.
The facts of the present petitioner, in fact, appear to be better to the case of Kamdeo Prasad Shahi (supra) as in the instant case, the petitioner was already having teacher's training qualification on the date of his appointment as it would evident from Annexure2. In the case of Kamdeo Prasad Shahi (supra), the petitioner therein had acquired such degree and training in 1986 whereafter he was given to act as an Incharge Headmaster. These issues have been settled by the judgments rendered by this Court following the judgment rendered by the Hon'ble Apex Court. There is no reason to derogate from the settled position of law by the respondents. Learned counsel for the petitioner has also relied upon a Division Bench Judgment of the Patna High Court in the case of Khirod Mahto Vs. The State of Bihar & Ors reported in 2009 (1) PLJR 655. In the said judgment also, the judgment rendered in the case of A.K. Pradhan, reported in 1998 (2) SCC 211, has been taken into account and the respondents were directed to consider his claim for regularization/ promotion/ appointment on the post of Headmaster with effect from the date on which he had completed seven years of service on the date the said institutions were taken over by the Government i.e. 2.10.1987. In such circumstances, the order impugned at Annexure4 dated 13.5.2010 not only appears to suffer from non application of mind but also not taking into account the settled position of law laid down by the judgment, where in similar circumstances, such impugned order has been quashed.
In such circumstances, the impugned order at Annexure4 dated 13.5.2010 deserves to be quashed and is, accordingly, quashed.
The respondents shall take steps to regularize the services of the petitioner on the post of Headmaster on reckoning seven years of his appointment from the date the school was taken over as the petitioner was working as a Incharge Headmaster of the said school prior to taking over the school in question. Consequently, he will be entitled to the benefits of the post of Headmaster from the said date as determined in view of settled legal position, discussed hereinabove and rendered in the case of Kamdeo Prasad Shahi (supra) and others cases as well within a period of 16 weeks from the date of receipt of a copy of this order.
Accordingly, this writ petition stands allowed in the aforesaid terms.
(Aparesh Kumar Singh, J.) Brajesh/