Jharkhand High Court
Sanjay Kumar vs The State Of Jharkhand on 25 July, 2018
Author: S.N.Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHAKHAND AT RANCHI
W.P.(S)No.2037 of 2016
Sanjay Kumar. ... ... ... ...Petitioner
-Versus-
1. The State of Jharkhand.
2. Secretary, Human Resources Development Department, Govt. of
Jharkhand, Project Bhawan, P.O. Dhurwa, P.S. Jagarnathpur,
District-Ranchi (Jharkhand).
3. Director, Primary School Education and Literacy Department,
Human Resources Development Department, Govt. of Jharkhand,
Project Bhawan, P.O. Dhurwa, P.S. Jagarnathpur, Dist. Ranchi.
4. District Superintendent of Education, Ranchi, P.O., P.S. &
District Ranchi (Jharkhand). ... ... ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioner: Mr. A.K.Das, Advocate.
For the Respondents: Mr. Binod Singh, S.C. (L & C).
Mr. Vishal Kumar Singh, A.C. to S.C. ( L & C).
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07/ 25.07.2018 The petitioner has approached this Hon'ble Court with a prayer
for quashing the letter No.103 dated 17.02.2016 (Annexure-8) passed by Director, Primary School Education and Literacy Department, whereby and whereunder he has rejected the representation filed by the petitioner in compliance of the direction passed by this Hon'ble Court in W.P.(S)No.3637 of 2011 and refused to make final fixation of pay scale to the petitioner on the ground that the post was not sanctioned.
Further prayer has been made for direction upon the respondent-authorities to release the arrears of salary as well as current salary to the petitioner which is due since February, 2010.
2. The brief facts of the case is that Lutheran Middle School, Gopalpur, Lapung, Ranchi is a Government Aided Minority School which was granted minority status vide Memo No.2361 dated 26.05.1978 and after grant of minority status, the respondents have sanctioned 07 posts of teachers in the said school. As per the existing policy of the State Government, all teachers appointed in the Government Aided Minority School against vacant and sanctioned posts and whose services have been approved by the District Superintendent of Education are to be paid their salary by the State Government at a scale at par with the teachers of the Government School. The petitioner was appointed in the said School as a teacher on 20.09.1988 and his appointment was duly approved by the District Superintendent of Education, Ranchi vide Memo No.2884 dated 27th July, 1989. After approval of the appointment of the petitioner, the service book of the petitioner was also opened and the salary of the petitioner was provisionally fixed by the District Superintendent of Education and payment of the same commenced with effect from the date of his joining and the petitioner continued to draw his salary till February, 2. 2010.
3. It is the case of the petitioner that as there was a huge pendency of files with respect to the final fixation of the pay scale, the State Government from time to time had been issuing Circulars and Guidelines regarding payment of salary to the newly appointed teachers on the basis of the provisional fixation of pay scale pending the final fixation of pay scale. The first notification to that effect was issued by the State Government on 22.12.1995, wherein all District Superintendents of Education were informed that all teachers who have been appointed in the Government Aided Minority Schools should be paid their salary on the basis of the provisional fixation of the pay scale and only after obtaining an undertaking from the said teachers on affidavit. After implementation of the Sixth Pay Revision, again Human Resources Development Department, Government of Jharkhand had issued a letter being letter No.2510 dated 06.12.2007 wherein it was again reiterated that final fixation of pay scale is still pending, the payment should be made to the teaching and non- teaching employees concerned of the aided schools including minority schools on the basis of the provisional fixation of the pay scale after obtaining an affidavit to the effect that if any discrepancy is found, then the excess payment if received in lieu of some discrepancy should be refunded.
4. It is specific case of the petitioner that the District Superintendent of Education after provisionally fixing pay scale of the teachers of several minority schools including the School of the present petitioner, sent the same for approval and final fixation to the office of the Director, Primary School Education and Literacy Department, Human Resources Development Department, Government of Jharkhand, vide letter dated 17.07.2008.
5. Learned Counsel for the petitioner submits that the respondents are not justified in withholding the salary of the petitioner with effect from February, 2010 without any cogent reasons. The petitioner had continuously discharged his duties for the intervening period, the respondents cannot be justified for not making payment of salary of the petitioner with effect from February, 2010, ignoring the earlier circulars issued by the State Government. The matter relating to final fixation of pay scale of the petitioner is pending with the Director, Primary School Education and Literacy Department, Human Resources Development Department, Government of Jharkhand, since last several years, the petitioner cannot be made to suffer due to latches and inaction on the part of the respondent- authorities. The petitioner was appointed against vacant and sanctioned post and his services have been duly approved by the competent authority 3. and after approval of the services, petitioner continued to receive his salary on the pay scale provisionally fixed by the District Superintendent of Education, the respondents are not justified in stopping all of a sudden the disbursement of the same. The District Superintendent of Education is not justified in ignoring the Government circulars issued by the Secretary, Human Resources Development Department and by passing the directions mentioned in such circulars, withholding the salary of the present petitioner. The post against which the petitioner was appointed was subsequently sanctioned by the State Government on 13.07.1990 and the respondents continued to make payment of salary to the petitioner till Febraury, 2010 and now it is not open for the respondents to refuse to grant final fixation of pay scale and release arrears of salary on the ground that at the time of initial appointment, the said post was not sanctioned. The sanction of post for the subject of Physical Education was in the pipeline and in contemplation thereof the petitioner was appointed and his appointment was duly approved by the District Superintendent of Education, Ranchi, the respondents were not justified in rejecting the claim for final fixation of pay scale and releasing arrears of salary to the petitioner. The impugned order being wholly illegal is not sustainable in the eyes of law. Refusal to grant final fixation of pay scale to the petitioner by the respondents after receiving more than 20 years of services is wholly illegal and in violation of the rights enshrined under Article 21 of the Constitution of India. The impugned order is barred by principles of waiver, estoppels and acquiescence. The petitioner is entitled for release of his salary. The action of the respondents is wholly illegal, arbitrary, unjustified, in colourable exercise of powers and bad in law. The action on the part of the respondents is violative of Article 14 and 21 of the Constitution of India.
6. Per contra counter-affidavit has been filed.
7. Learned Counsel for the respondents vehemently opposes the contention of the learned Counsel for the petitioner and submits that the management committee has appointed the petitioner against unsanctioned post as there was no sanctioned post of Physical Education teacher. Post of Physical Education teacher was not admissible in non government aided minority school though it appeared that one post of physical Education teacher was allotted to the said school vide memo No.414 dated 13.07.1990 issued under the signature of Additional Director, Branch Ranchi. The power to sanction post is with the State Government and the petitioner is holding non-sanctioned post created by the school management, but not sanctioned by the State Government, the petitioner 4. at best can claim wages from the School management. It is settled law that a person appointed against a post not sanctioned by the State Government, cannot claim benefits relating to fixation of salary. The grievance of the petitioner is neither tenable nor sustainable in the eyes of law. The instant writ application is devoid of merits and is fit for the dismissal.
8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the impugned order dated 17.02.2018 so far as it relates to the petitioner is not sustainable in the eyes of law and is hereby quashed and set aside on the following grounds:
i. the petitioner was appointed in the year 1988 i.e. 20.09.1988 and his appointment was duly approved by the District Superintendent of Education, Ranchi vide memo No.2884 dated 27th July, 1989.
ii. the salary of the petitioner was provisionally fixed by the District Superintendent of Education and payment of the same commenced with effect from the date of his joining and petitioner continued to draw his salary till February, 2010. Vide notification dated 22.12.1995 it was decided that all teachers, who have been appointed in Govt. Aided minority schools, should be paid their salary on the basis of the provisional fixation of the pay scale only after obtaining an undertaking from the said teachers on affidavit. Govt. Notification dated 06.12.2007 again reiterated that since final fixation of pay scale is still pending, the payment should be made to the teaching and non-teaching staff as provisionally fixed earlier. The post against which the petitioner was appointed was subsequently sanctioned by the State Government on 13.07.1990 and the respondents continued to make payment of salary to the petitioner till February, 2010. The petitioner continuously received the salary for 22 long years. The State had enough opportunity to perform the veracity of the appointment of the petitioner for 22 long years. After 22 years it is not open to the respondents to come with a plea that the initial appointment of the petitioner was not on a sanctioned post. Since the petitioner had received salary all along for 22 years, it must have been given after due verifications by the Govt. and therefore, it cannot be said that initial appointment was not on a sanctioned post. The petitioner was duly appointed as an Assistant Teacher 5. on 20.9.1988. There is presumption in law that when he was appointed, his eligibility, qualification, certificates and testimonials were verified. That is further emboldened in the present case from the facts that from 1990 till 2010 none found any illegality in his appointment or quality of education imparted by him. 22 years after his appointment, suddenly an issue of the illegality of the appointment is sought to be racked up. He is then made to run to the lawyer and to the Court Room and balance his budget for running his house. The casualty is to the education being imparted by him. The matter regarding fixation of pay scale of the petitioner is pending with the Director, Primary School Education and Literacy Department, Govt. of Jharkhand since last several years. The petitioner cannot be made to suffer due to latches and inaction on the part of the respondents.
iii. Appointment of the petitioner was duly approved by the District Superintendent of Education, Ranchi. One post of Physical Education Teacher was allotted to the said school vide memo No.414 dated 13.07.1990 issued under the signature of Additional Director, Ranchi cannot be matter of challenge after 28 years.
Summing up the aforesaid grounds, comfortably it can be said that if petitioner was illegally appointed as he sought to be appointed and falsely it was a collusive appointment, if it was a collusive appointment why should the petitioner suffer alone. The Hon'ble Patna High Court in case of "Kabir Mahto v. The State of Bihar", reported in 2009(1) PLJR 35 has held:
"8 If the petitioner was an illegally appointee as is sought to be contended quite obviously it was a collusive appointment. If, it was a collusive appointment, why should the petitioner suffer alone ? Those who made hay while the sun shone must equally see cloudy days. If the petitioner has to be denied his arrears of salary and retiral benefits all those in the Government who were associated with the appointment of the petitioner and released all salary to him as Assistant Teacher from 1972 to 1999 are equally required to be proceeded with against departmentally or under the criminal laws of the land, as the case may be. The counter-affidavit of the respondents is completely silent on this issue, perhaps intentionally.
"11. The impugned orders dated 14.09.2004 and 20.9.2004 are quashed. The Court holds that the petitioner is entitled to his entire arrears of salary 6. withheld from 1999 till his retirement on 30.06.2004 as also his retirement benefits. The only justification for the same would be institution of simultaneous departmental or criminal proceedings against those who dealt with his appointment and continuance from 1972 to 1999 as notice above."
Reliance of the respondents in case of "State of Haryana vrs. Subash Chander Marwaha, reported in (1974) 3 SCC 220 and that of "Shankarsan Dash v. Union of India", reported in (1991) 3 SCC 47 is of no use as the same is not attracted in this case. The petitioner claiming salary as he had received continuously from 1988 till 2010 and after 22 years the same cannot be stopped on the ground that the initial appointment of the petitioner was not on a sanctioned post. The aforesaid two judgments relate to appointment and the same is not attracted in the instant case. The petitioner had already been appointed and continued and is still working on the said post.
9. As a cumulative effect of the aforesaid Rules, Guidelines, Circulars, I hereby quash and set aside the order dated letter No.103 dated 17.02.2016 and direct the respondents to pay the salary of the petitioner from 2010 to till date if he is continuing on the same post.
[Dr. S.N.Pathak,J.] P.K.S.