LAWS(JHAR)-2018-7-40

BABITA MAHESHWARI Vs. STATE OF JHARKHAND

Decided On July 11, 2018
Babita Maheshwari Appellant
V/S
STATE OF JHARKHAND Respondents

JUDGEMENT

(1.) In the captioned writ application, the petitioners have sought for quashing the order dated 20.03.2013 pertaining to rejection of representation by the respondent no.3, and further prayer has been made for issuance of writ of mandamus commanding upon the respondents for grant of approval over the fixation of salary as well as release of salary from the month of November 2009 till date with interest accruing thereon.

(2.) The brief facts, as revealed in the writ application, is that in pursuance to advertisement in the year 2007, applications were invited for appointment of teachers published in the newspaper by Sri Doranda Kanya Pathsala, which is a recognized minority school. The petitioners submitted their applications and were aged 42 years at the time of the advertisement. Again another advertisement was issued in the year 2008 for appointment of the aforesaid post. In the second advertisement it has been mentioned that persons who have already applied will not apply, therefore, petitioners did not apply pursuant to the second advertisement. Again another advertisement was issued in the year 2009 for appointment on the said post with the same condition that persons applied earlier need not apply. The respondent authority started the process of selection for appointment and accordingly, written examination as well as interview were conducted, in which, four persons were selected including the petitioners. Thereafter, the petitioners joined the said posts. It is relevant to mention that in the selection committee, the District Education Officer cum District School Inspector, Ranchi was also present. On the recommendation of the District Education Officer, Ranchi cum District School Inspector, Ranchi, the District Superintendent of Education granted provisional approval over the appointment of the petitioners as Assistant Teacher in regular Matric Trained Scale of Rs. 4500-7000/- vide officer order dated 23.07.2009 as per Annexure-4 and 4/1 to the writ application. The salary of the petitioners has been fixed accordingly and the salary fixation has been forwarded by the District Education Officer, Ranchi cum District School Inspector, Ranchi, before the Superintendent of Education, Ranchi for approval. Though the petitioners got their salary but subsequently the same has been withheld pending approval from the office of respondent nos.2 and 3. Since the consideration for approval was kept pending, the petitioners represented before the respondent authority. Due to inaction on the part of the respondents, the petitioners approached this Court in W.P.(S) No.4745 of 2012, which was disposed of on 21.09.2012 with direction to the respondents to consider the case of the petitioners and dispose of the representation within 90 days. In deference to the order passed by this Court, since the representation was not disposed of, a contempt petition being Contempt Case (Civil) No.112 of 2013 was preferred by the petitioners, whereupon the impugned order dated 20.03.2013 vide Annexure-9 to the writ petition has been passed. Being aggrieved by the impugned order vide Annexure-9 to the writ petition, the petitioners left with no alternative, have been constrained to approach this Court under Article 226 of the Constitution of India for redressal of their grievances.

(3.) Learned counsel for the petitioners has strenuously urged that the action of the respondents in rejecting the representation vide Annexure-9, without considering the facts that there is no upper age limit, so far as appointment of teacher in a minority institution is concerned is without jurisdiction. Learned counsel for the petitioner further submits that the petitioners have been duly selected by a regular selection committee in pursuance to the advertisement, and the petitioners have been rendering services since June 2009 and their appointment has also been provisionally approved. So far as teachers appointed in a minority institution are concerned, the same is to be governed under Bihar Non-Government Primary Education (Control, Taken over) Rules, 1976 which is applicable for the State of Jharkhand, which makes provision under Section 7 for the Government to provide certain guidelines for the minority institution but under the provision of the said Act, no guidelines has yet been provided by the Government for the minority institution with regard to fixing the criteria relating to the maximum age in the minority institution as Assistant Teacher, therefore, the ground taken in the impugned order is thoroughly misconceived and cannot be a ground based on cogent reasons. Learned counsel for the petitioner further submits that even otherwise Jharkhand Primary School Appointment Rules, 2002 which has been amended in the month of August 2007 and pursuant to such amendment the maximum age limit for women to be appointed as Primary Teacher was enhanced up to 43 years and the petitioners were within the age at the time of applications in the year 2007. Therefore, assuming for the sake of argument but not conceding that the petitioners were within the permissible maximum age limit in the year 2007 when they applied in pursuance to advertisement published in newspaper on 10.02007 vide Annexure-1 to the writ application. Therefore, learned counsel for the petitioner submits that the impugned order suffers from gross illegality and impropriety being violative of Article 14 and 16 of the Constitution of India.