Dismissed

The State of Jharkhand through Its Secretary Primary Education and Ors. v. Vivekanand Tiwari and Ors.

Jharkhand HC21 Mar 2023LPA/16/2018

Case brief

AI extract

What is this about?

This judgment addresses two letter patent appeals challenging orders fixing the pay scale for untrained teachers who later completed training. The court construed Arbind Bhusan Dey. It found the lower court's order based on that precedent correct, dismissing the appeals.

What did the court decide?

The interlocutory applications for condoning delay are allowed; the letter patent appeals against the single judge's order fixing pay scale fail and stand dismissed.

The State of Jharkhand through Its Secretary… — Service and Employment | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 11 of 2018

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With

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I.A. No. 8058 of 2018

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The State of Jharkhand through its Secretary, Primary Education (HRD), (Now School Education and Literacy Department), Govt. of Jharkhand, at –Project Building, P.O. & P.S. Dhurwa, Dist.-Ranchi, Jharkhand.

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The Director, Primary Education, (Now School Education and Literacy Department), Govt. of Jharkhand, at –Project Building, P.O. & P.S. Dhurwa, Dist.-Ranchi, Jharkhand.

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The Deputy Commissioner-cum-Chairman, District Establishment Committee, Sahibganj, at and P.O. –Sahibganj, P.S. & district-Sahibganj.

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District Superintendent of Education, at, P.O. & P.S. & district-Sahibganj.

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District Superintendent of Education, at, P.O. & P.S. & district-Pakur.

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… … Appellant/Respondents

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Versus

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Bipin Bihari Pathak, son of Late Chintamani Pathak, Resident of Manjhi Tola, P.O. Mahadeoganj, P.S. Mahadeoganj, District-Sahibganj, at present Primary School, Keshava Tola Circle, P.O. & P.S.-Borio, Sahibganj.

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Sachidanand Poddar, son of Shri Lakhan Lal Poddar, Resident of Sakrugarh, P.S.-Borio, (JB), post-Sahibganj, District-Sahibganj, at present posted as posted as Primry School Patharchapti, Circle Taljhari, Sahibganj.

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Surendra Prasad Chourasia, son of Late Kashilal Chourasia, Resident of Teachers Colony Madhpara, P.O. & P.S. – Pakur, District-Pakur, at present posted at Middle School Tarapur, Circle-Hiranpur, Pakur.

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… … Respondents/Petitioners

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With L.P.A. No. 16 of 2018 With I.A. No. 8096 of 2018

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The State of Jharkhand through its Secretary, Primary Education (HRD), P.O. + P.S. –Dhurwa, Jharkhand, Ranchi.

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The Director, Primary Education, P.O. + P.S. –Dhurwa, Jharkhand, Ranchi.

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The Deputy Commissioner-cum-Chairman, District Establishment Committee, Sahibganj, P.O. + P.S. –Sahibganj, District-Sahibganj.

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District Superintendent of Education, P.O. & P.S. & District-Sahibganj.

… … Appellants

Versus

Vivekanand Tiwari, son of Sri Ram Chandra Mandal, resident of Talljhari, P.O. & P.S. Taljhari, District-Sahibganj, at present working as Assistant Teacher, M.S. Maskalaiya Middle School, Taljhari, Sahibganj.

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Bani Bhusan Choudhary, son of Late Krishna Mohan Choudhary, resident of Talljhari, P.O. & P.S. Taljhari, District-Sahibganj, at present working as Assistant Teacher, Middle School, Sakarbhanga Taljhari, Sahibganj.

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Akhilesh Kumar Yadav, son of Sri Singheshwar Prasad Yadav, resident of Barhet, P.O. & P.S. Barhait, District-Sahibganj, at present working as Assistant Techer, M.S.-Khutuma Middle School, Borhet Sahibganj.

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Binay Kumar Jha, son of Late Gangadhar Jha, resident of Taljhari, P.O. & P.S. Taljhari, District-Sahibganj, at present working as Assistant Teacher, Primary School Karampura, Taljhari, Sahibganj.

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Shravan Kumar Mahawar, son of Deendayal Mahawar, resident of Mirza Chowky, P.O. & P.S. Mirza Chowkey, District-Sahibganj, at present working as Assistant Teacher, Primary School Karampura, Taljhari, Sahibganj.

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Anadi Prasad Singh, son of Sri Mahadeo Lal Singh, resident of Kusma, Barhet, P.O. & P.S. Barhet, District-Sahibganj, at present working as Assistant Teacher Middle School Kusma, Barhet, Sahibganj.

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Jagdish Pandit, son of Sri Dharu Pandit, resident of Busi Pahar, P.O. & P.S. Taljhari, District-Sahibganj, at present working as Assistant Teacher Primary School Busi Pahar, Taljhari, Sahibganj.

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Arun Kumar Sharma, son of – Late Ram Narayan Sharma, resident of Ramsabera, Taljhari, P.O. & P.S. Taljhari, District-Sahibganj, at present working as Assistant Teacher Primary School Ramsabera, Taljhari, Sahibganj.

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Bachneshwar Prasad Singh, son of Late Jagdeo Prasad Singh, resident of Jaskeeti, P.O. & P.S. Taljhari, District-Sahibganj, at present working as Assistant Teacher Jaskeeti, Taljhari, Sahibganj.

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(1) Smt. Priti Kumari, D/o Anant Kumar Choudhary

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(2) Smt. Priya Kumari, D/o Anant Kumar Choudhary

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(3) Smt. Komal Kumari, D/o Anant Kumar Choudhary

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All resident of Dogachchi Nawabganj, P.O. Manikari, District-Kathian.

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11.Samir Kumar, son of Jatil Chandra Das, resident of – Udhawa, P.O. & P.S. Budhanagar, District-Sahibganj, at present working as Assistant Teacher, P.S. Nakpara Udhawa, Radhanagar, Sahibganj.

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12.Hiralal Ram, son of Beni Prasad Ram, resident of Rajmahal, P.O. & P.S. Rajmahal, District-Sahibganj, at present working as Assistant Teacher, M.S. Dhubyar, Raj Mahal, Sahibganj.

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13.Kanai Ranjan, son of Late Tara Pado Sarkar, resident of Barharwa, P.O. & P.S. Barharwa, District Sahibganj, at present working as Assistant Teacher, M.S. Ranigrama Primary School, Barharwa, Sahibganj.

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14.Sunil Kumar Thakur, son of Durganath Thakur, resident of Taljhari, P.O. & P.S. Taljhari, District Sahibganj, at present posted as Primary School, P.S. Kanya Bakudi Santhali Anchal, Taljhari, Sahibganj.

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(1) Smt. Usha Jhar, w/o Sanjeev Kumar Jha

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(2) Shalini, D/o Sanjeev Kumar Jha

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Both are resident of Dayalpur, P.O. Jhadapur, P.S. Bihpur, District-Bhagalpur, Pin-853201, Bihar.

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… … Respondents/Petitioners

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND

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------For the Appellants : Mr. Deepak Kr. Dubey, Advocate For the Respondents : Mr. Ajit Kumar, Sr. Advocate Mr. Din Dayal Saha, Advocate Ms. Tanya Singh, Advocate ----------------------------

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ORAL JUDGMENT

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18/Dated: 21^st March, 2023

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Per Sujit Narayan Prasad, J

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I.A. Nos. 8058 of 2018 & 8096 of 2018:

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Both these interlocutory applications have been filed for condoning the delay of 510 days and 511 days respectively, which has occurred in preferring these appeals.

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No counter to the delay condonation application has been filed.

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Heard the parties.

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Having heard the learned counsel for the parties and considering the statements made in this application and the nature of issue involved in the case, this Court, deems it fit and proper to condone the delay so as to decide the issue on merit.

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Accordingly, both the interlocutory applications are allowed and the delay of 510 days and 511 days respectively in preferring these appeal, is hereby condoned.

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With the consent of the parties, the matter has been heard at this stage for final disposal.

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L.P.A. Nos.11 of 2018 & 16 of 2018:

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Both these appeals are under clause 10 of the letters patent directed against the order/judgment dated 14.07.2016 passed by the learned Single Judge of this Court in W.P.(S) No. 6403 of 2006 and W.P.(S) No. 994 of 2004, respectively, whereby and whereunder, the learned Single Judge has directed the respondent authorities to take appropriate steps to fix the pay scale of the writ petitioners by taking into consideration the issue having been decided by this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors., (2009) 1 JLJR 338 .

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The brief facts of the case as per the pleading made in the writ petitions which requires to be enumerated herein, read as under:

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The State of Bihar addressed letter to the Accountant General, Bihar through Finance Department vide letter No. F-Wa-1-08/80-Shi-50 dated 20.02.1981 for appointment of 2300 science teachers for imparting science education upto Class-VIII in non-tribal area.

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It is the case of writ petitioners that in the aforesaid letter, I.Sc. trained and B.Sc. trained teachers, to be appointed for the purpose of imparting education in science subject upto Class-VIII at the Primary School level and such teachers will be granted the scale as B.S. trained teachers but if such teachers are not available then even untrained qualified teachers can be appointed from outside candidate.

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Against the said advertisement, the writ petitioners applied and were declared successful and were appointed as Assistant Teachers in Matric untrained scales of Rs.535/-. However, it was directed in their appointment letter that they have to complete their training.

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Thereafter, the writ petitioners were sent for training and they were declared trained by publishing the training examination.

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Thereafter, vide memo no.77(SI) 3629 the Education Commissioner, Bihar wrote a letter to all the District Superintendent of Education regarding fixing the salary of those persons who were appointed and granted stipend and the scale of the writ petitioners was fixed at Rs.680965 (B.Ss. untrained scale).

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But, the Government of Bihar terminated the services of the writ petitioners and the writ petitioners moved upto Hon'ble Supreme Court where Hon'ble Supreme Court gave guidelines and in pursuance thereof, department circulation notification dated 18.01.1992 vide memo no.479/C was issued stating that the person who have passed I.Sc. and B.S. prior to appointment were fulfilling the required criteria and finally they were reinstated in service.

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It is the case of the writ petitioners that after their re-appointment in 1995, even though, they have completed the training but discarding the issue which has been settled by this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra) wherein the issue has been decided about the entitlement of the salary basis upon the date of training holding therein that the petitioners will be entitled to get their trained pay scale irrespective of the date of training, i.e., from the date of their appointment.

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Mr. Deepak Kr. Dubey, learned counsel for the appellants has submitted that the writ petitioners who initially were appointed in the year 1981 but their appointment was declared to be illegal. Thereafter, they have been reappointed on 1995, the day when the Bihar Taken Over Primary School Teachers Promotion Rules, 1993 came into effect.

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The grievance of the writ petitioners was raised that since they have completed training, as such, became entitled for the pay scale attached to the post of trained teachers.

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The due representations were made before the competent authorities for redressal of their grievance by taking aid of the judgment passed by this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra) but the grievance having not been redressed, the writ petitions were filed.

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The learned Single Judge after taking into consideration the factual aspect and the ratio decided in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra), has disposed of the writ petitions by considering the case of the writ petitioners at par with the case of Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra) and directed

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for the pay scale of the trained teachers, which is the subject matter of the instant appeals.

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The question has been raised that the learned Single Judge without concurring the factual aspect of the case of the appellants, has relied upon the judgment passed by this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra), therefore, the order impugned cannot be said to be proper.

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While on the other hand, Mr. Ajit Kumar, learned senior counsel assisted by Mr. Din Dayal Saha and Ms. Tanya Singh, learned counsels has submitted that it is incorrect on the part of the State to take the ground that the case of the writ petitioners is not falling in the category of the case where the issue has been decided in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra).

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The learned Single Judge on due examination of the aforesaid fact, wherein, the ratio has been laid down that the pay scale attached to the trained teachers will be extended in favour of the teachers who have completed their training and irrespective of the date of training, they will be entitled for the pay scale from the date of their appointment.

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This Court, after having heard the learned counsel for the parties and considering the order passed by the learned Single Judge, has found therefrom that the learned Single Judge has given thoughtful consideration about the judgment rendered by this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra).

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This Court, in order to consider the argument advanced on behalf of the appellants regarding the difference in the factual aspect involved in the case of Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra) has also considered the factual aspect along with its consideration giving due regard to the legal position and found therefrom, more particularly from para-11 onwards, wherein, the co-ordinate learned Single Judge of this Court has been pleased to hold the action of the State is discriminating by not making payment of the pay scale to the Graduate Trained Teachers even though they have completed their training.

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At this juncture, it will be appropriate to deal with the fact involved in the case of Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra). As per the said case, the Govt. of Bihar vide its letter no. 285 dated 20.01.1979 had created the post of 2300 units of science teacher for appointment in the Non-Schedules Areas with a stipulated condition that even untrained science teachers could be appointed but they will have to proceed for training and only on clearing the training, they will be allowed the pays scales as admissible to the trained teachers with effect from the dates they clear the training.

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Taking into consideration the aforesaid fact, the learned Single Judge of this Court had categorically held that there is no dispute that the present petitioners were untrained graduate science teachers but completed their training on respective dates and thus, their claim for trained graduate science teachers pay scale and the subsequent revised pay scale is fully justified.

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In the instant case also, the writ petitioners were admitted as untrained teachers and were appointed pursuant to letter no. 50 dated 20.02.1981 and as per the condition stipulated in the aforesaid letter, the untrained teachers will be appointed but they will get their pay in the scale of trained teachers only after completion of 18 months of their training. The learned Single Judge while taking into consideration the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 has held that the writ petitioners entitled to get the trained scale of pay with effect from their restive dates on which they completed their training.

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It further appears that the judgment rendered by this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra) has also been passed by taking into consideration the Government Letter No. F/Wa 1- 08/80 Ed. 50 dated 20.02.1981. For ready reference, the consideration so made by the co-ordinate learned Single Judge of this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra) requires to be referred herein, which reads as under:

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“ 10. Prima facie it appears to be a clear cut case of discrimination and double standard on the part of the respondents in violation of their own circular and order, issue on 20.02.1981. It is a settled law that a legal, vested and accrued right cannot be taken away retrospectively. In the

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instant case when the very advertisement was that the petitioners will be entitled to Graduate Science Teachers Pay Scale from the date when they achieve or acquire the qualification, based on which the petitioners acted upon and qualified for the same, the State cannot resile from its own commitment and undertaking an even otherwise rule of estoppel will apply against it. The respondents’ reliance on the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 is also misplaced and misconceived. These Rules were actually meant as Promotion Rules and for implementation of the Central Pay Scale with effect from 1^st January, 1986 and the same cannot apply to the present facts and circumstances of the case.”

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This Court, after taking into consideration the aforesaid aspect of the matter, is of the view that the argument which has been advanced that the factual aspect as is involved in the case of Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra) is different to the factual aspect involved in this case, is having no substance.

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This Court, in the entirety of the facts and circumstances as per the discussion made hereinabove and after taking into consideration the order passed by the learned Single Judge since is based upon the judgment rendered by another co-ordinate learned Single Judge of this Court in Arbind Bhusan Dey & Ors. vs. State of Jharkhand & Ors. (supra), basis upon which the direction so had been passed in favour of the appellants/writ petitioners holding them entitled for the Graduate Trained Scale (Science), the same according to the considered view of this Court requires no interference.

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Accordingly, both the appeals fail and stand dismissed.

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In consequence thereof, pending interlocutory application(s), if any, also stands disposed of.

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(Sujit Narayan Prasad, J.)

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(Subhash Chand, J.)

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Saurabh/-

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A.F.R

The State of Jharkhand through Its Secretary Primary Education and Ors. v. Vivekanand Tiwari and Ors.

Case brief

What is this about?

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The State of Jharkhand through Its Secretary Primary Education and Ors. v. Vivekanand Tiwari and Ors.

Case brief

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What did the court decide?

What the court decided

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