Jharkhand High Court
Rajive Kumar vs The State Of Jharkhand Through ... on 14 September, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
LPA No. 84 of 2018
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Rajive Kumar, son of late Uday Pratap Singh, resident of Duma+2 National
High School, Dumka, PO, PS and District- Dumka ... Petitioner/Appellant
Versus
1.The State of Jharkhand through Secretary, Human Resources Development
Department, Government of Jharkhand, Ranchi, having its office at Project
Building, Dhurwa, PO Dhurwa, PS Jagarnathpur, District Ranchi.
2.The Director, Secondary Education Directorate, Human Resources
Development Department, Government of Jharkhand, Ranchi, having its
office at Project Building, Dhurwa, PO Dhurwa, PS Jagarnathpur, District
Ranchi.
3. Jharkhand Public Service Commission, Circular Road, PO and PS Lalpur,
District, Ranchi through its Chairman. .... .... Respondents/Respondents
4. Sabita Patel, wife of Dr. Sunjeet Singh, resident of Lower Kusai, Kumhar
Toli, PO and PS Doranda District Ranchi at present posted at +2 S.S. High
School, Bundu, PO and PS Bundu, District Ranchi.
.... .... Proforma Respondent
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant(s) : Ms. Aprajita Bhardwaj, Advocate
For the Respondents : Mr. J.F.Toppo, GA-V;
Mr. Amrit Raj Kisku, AC to GA-V;
Mrs. Moushmi Chaterjee, AC to GA-V
For the JPSC : Mr. Sanjay Piprawall, Advocate;
Mr. Prince Kumar, Advocate
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ORDER
th 14 September 2022 Per, Shree Chandrashekhar,J.
The appellant has challenged the order dated 13 th November, 2017 passed in WPS No. 4200 of 2008.
2. By this order, the appellant's challenge laid to the decision dated 20th June 2008 by which the Vocational Instructors are debarred from consideration for appointment on the post of Headmaster has been rejected by the writ Court.
3. An Advertisement was issued by the Jharkhand Public Service Commission (in short 'JPSC') for 257 posts of Headmaster to be filled up in accordance with the Jharkhand Rajkiyakrit Madhyamik Vidyalaya (Seva Sart) Niyamawali, 2004. In pursuance of the said advertisement, the appellant participated and was declared successful. He was appointed as Instructor, Mining Geology Vocational Trade and was posted at + 2 level school, namely, National High School, Dumka. The appellant has pleaded that the National Policy of 2 LPA 84 of 2018 Education, 1986 introduced a systematic, well-planned and vigorously implemented programme of vocational education. The said policy was implemented in the erstwhile State of Bihar at + 2 level and 25 vocational courses in 6 major areas were introduced throughout the State in 148 schools. As per the staffing pattern for the vocational education, the Directorate of Education, NCERT made a provision for three full-time teachers and three Laboratory Assistants for the vocational courses in class XI and class XII apart from other staff, peons, clerks etc. It is stated that under the Jharkhand Non-Government Secondary School (Taking Over, Management and Control) Act, Jharkhand Rajkiyakrit Madhyamik Vidyalaya (Seva Sart) Niymawali, 2004 were framed under which Vidyalaya Seva Board has been constituted and empowered to make appointment to the post of teachers and Headmasters. The appellant has also referred to the report by the Jharkhand Academic Council to show that in the vocational streams one full-time teacher and one full-time Laboratory Assistant are appointed on regular basis but they have not been designated as per the Government of India norms as Lecturer rather they have been illegally given the nomenclature of Instructor/Laboratory Assistant.
4. Ms. Aprajita Bhardwaj, the learned counsel for the appellant refers to the judgment in "P.S. Ramamohana Rao v. A.P. Agricultural University & Another" (1997) 8 SCC 350, "State of Haryana v. Ghasi Ram" 2014 SCC OnLine P&H 19333, order dated 9th August 2016 passed by the Hon'ble Supreme Court in Special Leave to Appeal (C) No(s).17478 of 2008 title "State of Haryana & Ors. v. Ashok Kumar & Ors.", order dated 10th December 2009 passed by Jharkhand High Court in W.P(S) No. 3163 of 2007 title"Dr. Gopal Mishra v. The State of Jharkhand through the Secretary, H.R.D. Department, Ranchi & Ors." and the order dated 9th April 2021 passed by Calcutta High Court in WPA No. 3780 of 2015 titled "Sri Dibya Jyoti Paul v. the State of West Bengal & Ors" to submit that the appellant who is duly qualified for appointment on the post of a teacher could not have been excluded from consideration for the post of Headmaster.
5. From the materials on record, it is apparent that the Vocational Instructors were appointed under a scheme and while so their term of appointment would remain co-terminus with the scheme. May be the scheme has continued even today but for the purposes of coming within the purview of 'teacher', such posts must find a place in the staffing pattern of the State of Jharkhand.
6. Pursuant to our order dated 4 th August 2022, the respondent No.2 has produced the staffing pattern of Jharkhand +2 level schools and other relevant documents including a copy of the letter dated 16th August 2007.
3 LPA 84 of 2018
7. The aforesaid letter dated 16th August 2007 gives details of the teachers who shall be appointed under different streams in +2 level schools. It is stated that in addition to the teaching staff, there shall be one Laboratory Assistant, one clerk and one peon in every +2 level school.
8. Out of the two writ petitioners who approached the writ Court, Sabita Patel was a Laboratory Assistant who definitely does not fall under the category of teacher. The appellant, as noticed above, has been appointed under a scheme and the post of the Physical Instructor is not included in the staffing pattern of the teachers in +2 level schools in the State of Jharkhand.
9. The learned counsel for the appellant lastly refers to the report of the Jharkhand Academic Council to lay support to her submission that posts for Vocational Instructor were created and sanctioned and while so the Vocational Instructor must fall under the category of the teacher.
10. As understood in common parlance, the Jharkhand Academic Council is a recommendatory body and it has no power to create a post. Such powers lay with the State Government which through the letter dated 16 th August 2007 has created 11 posts of teachers amongst which the Physical Instructor/Vocational Instructor is not included.
11. Above being the actual state of affairs, we are not inclined to refer to the judgments relied upon by the learned counsel for the appellant. The writ Court framed four issues including the mode and method of appointment of the Vocational Instructors. The writ Court thereafter proceeded to examine the method and manner of appointments and promotion on the post of Headmaster. The writ Court also took note of the stand taken by the State and Jharkhand Public Service Commission and finally held as under:
"11. Having given my thoughtful consideration to the rivalized contentions on behalf of the learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioners have not been able to make out a case of interference due to the following facts, reasons and judicial pronouncements :-
(i) Admittedly, the petitioners, who are vocational instructors, applied for the post of the Headmaster in pursuance to the advertisement though initially, they were selected provisionally for the said post, but when the matter was decided as per the Jharkhand Rajkiyakrit Madhyamik Vidyalaya, (Seva Sart Niyamawali) 2004, it has been made clear that vocational instructors are not eligible for the post of the Headmaster, therefore, the petitioners could not have been considered for selection to the post of the Headmaster, therefore, the petitioners' challenge to the Decision dated 20.06.2008 vide Annexure-13 to the writ petition is thoroughly misconceived both on facts and on law.
(ii) Before adverting to the rivalized submissions, it 4 LPA 84 of 2018 would be apposite to refer to Rule 4 (i) (ii) of the Jharkhand Rajkiyakrit Madhyamik Vidyalaya, (Seva Sart Niyamawali) 2004.
"4. (ii) Ten years teaching experience in recognized High School which is situated in Jharkhand State."
12. We further find that the writ Court placed reliance on the judgment in "K.S. Mahalingegowda & Ors. v. Secy. to Govt., Deptt. of Vocational Education, Karnataka & Ors. 1995 Supp. (2) SCC 95" to distinguish the post of vocational teacher and regular teacher in the school.
13. In "K.S. Mahalingegowda" the Hon'ble Supreme Court has observed as under:
"9. We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties. We are of the view that the claim of the appellants, to be regularised as teachers and be paid the same salary as is being paid to the non-vocational teachers -- based on the principle of "equal pay for equal work"
-- is wholly misconceived. It is entirely within the executive domain of the State Government to take a policy decision and frame any scheme for the benefit of the people of the State. The vocational training scheme is one of such schemes. The avowed object of the scheme is to provide vocational training for a period of one/two years to the students who do not wish to pursue academic studies beyond 10th class. It is a useful scheme which helps young men to acquire eligibility for employment in skilled jobs while they are still in the educational institutions. The scheme was a result of the policy decision of the State Government. It was entirely for the State Government to lay down as to what type of teaching staff was required to implement the scheme; duration of the scheme, the financial involvement, type of the vocational training and various other aspects must have been taken into consideration by the State Government while providing the mechanism to implement the scheme. When the scheme has been made to operate with the help of the part-time teaching staff it is not for this Court, ordinarily, to modify the scheme and direct the State Government to employ whole-time staff to implement the scheme. This Court in Delhi Development Horticulture Employees' Union v. Delhi Admn. speaking through P.B. Sawant, J. observed as under: (SCC p. 111, para 22) "Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularisation, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources."
5 LPA 84 of 2018 Even otherwise we see no parity on facts between the vocational teachers under the scheme and other teaching staff in an educational institution. Vocational training is not a part of regular teaching in the institutions where the appellants are working. It is only as a result of the implementation of the scheme that the educational institutions have been given option to introduce vocational training. The method of teaching, the extent of responsibility and the requirement of academic intellect in the two sets of teaching is entirely different. Teaching academic subjects like English, History, Mathematics, Geography, etc. is not the same as giving practical training in clock and watch repair, photography, printing and book binding, optician and refractionist, horticulture, sericulture."
14. Having considered all material aspects of the matter, we are in complete agreement with the writ Court's order that the Vocational Instructors like the appellant are not eligible for appointment on the post of Headmaster.
15. For the aforesaid reasons, LPA No. 84 of 2018 is dismissed.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 14th September, 2022 SB/Nibha-NAFR