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Md Fekarul Shaikh Vs. Human Resource Development - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantMd Fekarul Shaikh
RespondentHuman Resource Development
Excerpt:
.....s.c.i. cav on:21st june, 2016 pronounced on 06/10/2016 per pramath patnaik, j.:1. in the instant writ application, the petitioner has inter alia prayed for quashing/setting aside the order dated 29.06.2012 passed by the deputy commissioner, pakur (respondent no.2) and for direction to the respondents to allow the petitioner to work as para teacher with admissible salary/honorarium.2. sans details, the facts as emanated from the writ application, is that the secretary of the middle school, anjana in the district of pakur was directed to select para teachers as per the government instruction dated 26.12.2005 whereby the minimum qualification for appointment as para teachers from class-i to class v was intermediate as evident from annexure-1 to the writ application. in pursuance to the.....
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4400 of 2012 Md. Fekarul Shaikh son of Sahadat Shaikh, resident of Village-Anjana, P.O. Prithivi Nagar, P.S. Pakur (M), District-Pakur ….. ….. Petitioner Versus 1. The State of Jharkhand through the Secretary, Human Resources Development Department having office at Project Building, P.O. & P.S. Dhurwa, Town and District-Ranchi.

2. The Deputy Commissioner, Pakur, P.O., P.S. & District-Pakur.

3. The District Superintendent of Education, P.O., P.S. & District-Pakur.

4. Md. Lenin son of Md. Ali, resident of Village-Sitesh Nagar, P.O. Sitesh Nagar, P.S. Pakur (M), District-Pakur. ….. …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : Mr. Manoj Tandon, Adv. For the Respondents-State : Ms. Ruchi Rampuria, J.C. to Sr. S.C.I. CAV on:21st June, 2016 Pronounced on 06/10/2016 Per Pramath Patnaik, J.:

1. In the instant writ application, the petitioner has inter alia prayed for quashing/setting aside the order dated 29.06.2012 passed by the Deputy Commissioner, Pakur (respondent no.2) and for direction to the respondents to allow the petitioner to work as Para Teacher with admissible salary/honorarium.

2. Sans details, the facts as emanated from the writ application, is that the Secretary of the Middle School, Anjana in the District of Pakur was directed to select Para Teachers as per the Government instruction dated 26.12.2005 whereby the minimum qualification for appointment as Para Teachers from Class-I to Class V was Intermediate as evident from Annexure-1 to the writ application. In pursuance to the direction dated 27.06.2007 vide Annexure-3, the Aam Sabha was held on 02.07.2007 for appointment of Para Teacher in the School in question. Out of 13 candidates, the petitioner was selected and the name of the petitioner finds place at serial no.2 in the list of selected candidates dated 02.07.2007 as evident from Annexure-4 to the writ application. The appointment of the petitioner was approved by the competent authority at the Block level and pursuant thereto the petitioner submitted his joining on 25.10.2007 which was accepted by the competent authority. Thereafter, the petitioner continued to work as Para Teacher in the said school and was paid salary/honorarium from 25.10.2007. On the basis of complaint made by respondent no.4, the respondent no.2 2 who happens to be the Chairman of Sarva Siksha Abhiyan cancelled the selection of the petitioner by order dated 05.06.2008 vide Annexure-8 to the writ application. It has been asserted in the writ application that the respondent no.4 was appointed as Para Teacher in the Upgraded Middle School, Sitesh Nagar of which he is a permanent resident and respondent no.4 also accepted an agreement on 01.07.2009 vide Annexure-11 to the writ application and as such he cannot claim another appointment in the present school in question. Being aggrieved by cancellation of selection, the petitioner approached this Court in W.P.(S) No.4325 of 2008 and this Court vide order dated 20.03.2012 was pleased to quash the impugned order dated 05.06.2008 passed by the Deputy Commissioner, Pakur and the matter was remanded to the Deputy Commissioner, Pakur to take a fresh decision, in accordance with law, after hearing the petitioner as well as the respondent, looking to the minimum qualification so prescribed within a period of four weeks from the date of receipt of a copy of the order. The respondent no.2 in pursuance to order of this Court, vide order impugned dated 29.06.2012 has directed for re-holding of Aam Sabha for selection of Para Teacher afresh. Being aggrieved and dissatisfied with the impugned order dated 29.06.2012 passed by the Deputy Commissioner, Pakur (respondent no.2) vide Annexure-14, the petitioner left with no other efficacious and alternative remedy, approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievances.

3. Learned counsel for the petitioner during course of hearing has submitted that despite valid service of notice, the respondent no.4 chose not to contest the writ application. Moreover, the respondent no.4 has been appointed as a subject expert in Block Resource Centre, Maheshpur from 11.04.2011, therefore, the respondent no.4 does not have any interest to join as Para Teachers. In that view of the matter, there was no occasion for respondent no.2 to direct for fresh selection of Para Teacher in the school in question. Learned counsel for the petitioner further submits that the respondents have not disputed the averments made in paragraph 5 of the writ petition so far as minimum educational qualification of Para Teacher from Class-I to Class-V is concerned. Moreover, the petitioner has also undergone Diploma in Primary Education, so the petitioner has got the minimum qualification for appointment to the post in question. Learned counsel for the 3 petitioner further submits that so far as the contention of the respondent that Right to Education Act, 2009 has become effective and without training and TET Certificate, no Para Teacher can be appointed. Learned counsel for the petitioner submits that Right of Children to Free and Compulsory Education Act, 2009 came into effect in the State of Jharkhand from April 2010 and the qualification of TET was made mandatory only after the National Council for Teacher Education (NCTE) came out with notification dated 23rd August 2010 and therefore, these qualifications are not applicable in the present case since the petitioner was appointed in the year 2007 itself.

4. Per Contra, controverting the averments made in the writ application, a counter affidavit has been filed on behalf of the respondent nos.2 and 3. Learned J.C to Sr. S.C-I appearing for the State has reiterated the submissions made in the counter affidavit. Learned counsel for the State has submitted that pursuant to the order of the Hon’ble Court dated 20.03.2012, the Deputy Commissioner, Pakur started Misc. Case No.02/2012 and after hearing the petitioner, respondent no.4 and departmental officer, passed an order on 29.06.2012 wherein every facts has been discussed elaborately and the Deputy Commissioner, Pakur directed the answering respondent to ensure the selection of Para Teacher afresh by arranging Aam Sabha at Middle School, Anjana vide Annexreu-B to the counter affidavit. Learned counsel for the State has further submitted that as per the provisions of Right to Education Act, 2009, the Principal Secretary, Human Resources Development Department ordered that as per Section 23 (1) it is mandatory to be trained and pass in Teacher Eligibility Test for selection as Para Teacher as evident from Annexure-C to the counter affidavit. It is further stated that as per the aforesaid order of the Government, the District Superintendent of Education-cum-District Programe Officer, Pakur sent a letter to the Deputy Commissioner, Pakur on 14.08.2012 describing the mandatory direction and in view of changed situation and in the light of the latest Government direction, the Deputy Commissioner, Pakur gave oral direction to follow the guidelines of the Government in the process of selection of Para Teacher at Middle School, Anjana. It is further submitted that process of selection of Para Teacher could not be held, in view of the mandatory direction of the Government whereby passing of TET examination has been made necessary for the selection of Para Teacher whereas the petitioner does not have the said qualification. Moreover, the 4 petitioner does not fulfil the aforesaid criteria, therefore, selection of Para Teacher at Middle School, Anjana was withheld.

5. After hearing learned counsel for the respective parties and on perusal of the documents on record, I am of the considered view that the petitioner has not been able to make out a case for interference, due to the following facts and reasons: (I) In the instant writ application, on perusal of the Annexure-12, the order dated 20.03.2012 passed in W.P.(S) No.4325 of 2008, it is apparent that the order of cancellation of appointment of the petitioner as Para Teacher has been quashed and the matter was remanded to the Deputy Commissioner, Pakur to take a fresh decision after hearing the petitioner and the private respondent and looking to the minimum qualification so prescribed, in accordance with law. In deference to the order passed by this Court dated 20.03.2012 in W.P.(S) No.4325 of 2008 the respondent no.2 started Misc. Case No.02/2012 and after giving opportunity to the petitioner and private respondents passed the order dated 29.06.2012 on threadbare analysis of the factual aspects and direction was given to the respondent no.3 to ensure selection of Para Teacher afresh by arranging Aam Sabha at Middle School, Anjana. So, there is absolutely no infirmity/illegality in passing the impugned order dated 29.06.2012. (II) As per the provisions of Right to Education Act, 2009 it has become mandatory to have trained Teachers Eligibility Test (TET) for selection as Para Teachers. Therefore, in view of the changed situation any selection that is to be made has to be in consonance with the relevant provisions of Right to Education Act. Moreover, have a selection been made prior to coming into force of Right to Education Act, 2009 then certainly respondents could not have insisted upon the necessary training and passing of Teachers Eligibility Test (TET) for selection of Para Teacher but in the instant case nine years have elapsed from the date of selection of the petitioner as Para Teachers and at this distant of time it would not be appropriate rather iniquitous to direct the respondents to conduct selection of Para Teachers without insisting on the minimum qualification prescribed under Right to Education Act, 2009.

6. In view of the reasons stated in the foregoing paragraphs and as a logical sequitur to the aforesaid reasons, the impugned order dated 29.06.2012 passed by the Deputy Commissioner, Pakur (respondent no.2) 5 vide Annexure-14 to the writ application, does not call for any interference by this Court.

7. Accordingly, the writ application is dismissed being devoid of merit. (Pramath Patnaik, J.) Saket/-


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