Dismissed

Surender Mirdha v. the State of Jharkhand

Jharkhand HC18 Jan 2023WPC/1142/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the termination of two petitioners as para teachers. The Court held the appointments were void ab initio due to failure to meet minimum educational qualifications and one petitioner being a minor. Subsequent payment of honorarium could not regularize the illegal placement.

What did the court decide?

The writ petition for quashing of termination and reinstatement was dismissed; interlocutory applications disposed of.

Surender Mirdha Vs the State of Jharkhand — Pension and Retirement Benefits | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (S) No. 1142 of 2018

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With

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I.A. No. 5179 of 2019 With

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I.A. No. 11017 of 2022

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Surender Mirdha

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Ajay Paswan...

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….Petitioners

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Versus

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The State of Jharkhand

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The Secretary, Lokayukta Ranchi.

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The Deputy Commissioner, Hazaribagh

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The District Superintendent of Education-cum-District Programme Officer, Hazaribagh.

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The Additional District Programme Officer, Jharkhand Education Project, Hazaribag.

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The Block Development Officer-cum-Block Programme officer, Barkatha, Hazaribag.

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The Block Education Extension Officer, Barkatha, Hazaribag.

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...Respondents.

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN .

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-----For the petitioner(s): Mr. Sahadeo Choudhary, Advocate. For the respondent(s): Mr. Indranil Bhaduri, SC-IV Mr. Suman Marandi, AC to SC-IV. For the JEPC M/s Krishna Murari and Rajvardhan, Advocates.

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11/18.01.2023:

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Heard the counsel for the petitioners and the counsel for the State. 2. In this writ petition, the petitioners have prayed for an appropriate order from this Court in the nature of certiorari to quash the order as contained in Memo No. 1199/Hazaribag dated 14.12.2017, whereby, respondent No. 4- the District Superintendent of Education-cum-District Programme Officer, Hazaribag, pursuant to Complaint Case No. 1/Lok (Siksha) 09/2014, filed before the Hon'ble Lokayukta, Ranchi, has terminated the contract of the petitioners as para teacher. Further prayer has been made to reinstate them and pay their honorarium.

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Counsel for the petitioner submits that both the petitioners were selected a para teacher by the Gram Siksha Samiti (Village Education Committee), which would be apparent from the minutes of meeting of the Village Education Committee dated 20.5.2006 of village Gaira, Block- Barkatha, DistrictHazaribag. As per him, the name of the petitioners were sent to the higher Officials for approval, and pending approval, the Gram Siksha Samiti directed the petitioners to work as para teacher without any emoluments. One complaint was filed before the Hon'ble Lokayukt, Ranchi in the year 2014, alleging therein that the petitioners have been appointed illegally and the said complaint was entertained by the Hon'ble Lokayukt and thereafter an enquiry was conducted and an order was passed to take appropriate action as the allegation made in the complaint is found to be true. He further adds that the complaint was made in the

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name of one Sri Nath Paswan, but later on, he filed an affidavit stating that he has not given any complaint before any authority, thus, the Hon'ble Lokayukt could not have proceed with the complaint made by a fictitious person nor could not have directed the respondents to take appropriate action on the aforesaid complaint. He also submits that though the respondents have taken a plea that the selection of these petitioners were not approved by the higher authority but the fact cannot be lost sight of is that they are being paid their honorarium on regular basis and payment of honorarium on regular basis means that the services of the petitioners have been duly authorized by the higher authority. It is further the case of the petitioners that though show cause was call for but no personal hearing was granted to the petitioners. It is the contention of the petitioners that in their show cause, they have explained all situation including the fact that on the date the impugned order was passed i.e. on 14.12.2017, the petitioners had already passed their intermediate and it cannot be said that their appointment is illegal.

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Counsel for the respondent-State submits that these two petitioners were selected by the Village Education Committee sometime prior to 20.5.2006, which would be apparent from the minutes dated 20.5.2006 of the Committee, but surprisingly, when the matter was enquired and the documents were sought for, the authorities were informed that all the documents were not available as they have been destroyed. He further submits that Sri Nath Paswan lodged a complaint, however, had given in writing that he has not made any complaint, but the facts mentioned in the complaint was enquired and found to be true and that being so, the Hon'ble Lokayukt, Rachi had given a direction to take appropriate action. He also submits that the petitioners were served with show cause notice to which, they replied and thereafter the impugned order was passed. The appointment of the petitioners were illegal and de hors the provisions of law, thus their contract as para teacher was terminated. To substantiate his submission, he submits that petitioner No. 1- Surender Mirdha was selected by Gram Sabha on 20.5.2006 and on that date petitioner No. 1 admittedly was not intermediate. He refers several circulars whereby, the minimum qualification for para teacher is prescribed. As per the said circular, the minimum qualification for para teacher eligible to teach Class 1 to 5, is intermediate trained and admittedly on the date of selection, petitioner No. 1 was not intermediate trained. So far as petitioner No. 2 is concerned, he submits that over and above, the aforesaid discrepancy which relates to petitioner No. 1, the petitioner No.2 additionally was a minor on the date of selection as his date of birth is 5^th June 1990. He lastly submits that the petitioners were recommended to be appointed as para teacher but the higher authority did not recommend the petitioners' name to be appointed as para teacher and the payment of honorarium, is illegal and cannot validate the

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appointment of the petitioners.

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From the arguments of the parties, I find that the petitioners were working as para teacher. They were selected by the Village Education Committee, which is apparent from the minutes dated 20.5.2006. In resolution No. (2) of the said minutes, it is apparent that on the said date i.e. on 20.5.2006, both the petitioners had passed their matriculation and they enrolled themselves for intermediate course. Further from resolution No. 3, it appears that they were asked to work as para teacher till their selection is approved by the higher authority. This establishes fact beyond doubt that the petitioners were not intermediate on the date of their selection. 6. There are several circulars, which provide minimum educational qualification for a para teacher. One of them is dated 8.6.2005, which has been placed before this Court. As per the aforesaid circular/letter, the minimum educational qualification for a para teacher, qualified to teach Class-1 to 5 is intermediate trained. This educational qualification has been kept consistent in subsequent circulars also. Thus, on the date of selection i.e. on 20.5.2006, the minimum qualification of a para teacher, eligible to teach Class-1 to 5, would be intermediate trained. Admittedly on the aforesaid date, both the petitioners were not intermediate trained as petitioner No. 1- Surender Mirdha, passed intermediate on 31.5.2007, which is apparent from page 39 of the petition (Marksheet of intermediate of petitioner No. 1) whereas, petitioner No. 2- Ajay Paswan passed matriculation on 7.5.2006, which is apparent from page 37 of the petition (Marksheet of matriculate of petitioner No. 2). Thus, it is undisputed that both the petitioners have passed their intermediate after their selection by the Village Education Committee.

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Considering the minimum educational qualification prescribed, both the petitioners could not have been selected by the Village Education Committee to work as para teacher.

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Subsequent payment of honorarium or the fact that the petitioners were intermediate on the date of passing the impugned order termination, is immaterial. Once the appointment itself is illegal as the minimum educational qualification of a candidate has been overlooked, no subsequent event can validate the illegality. Irregular appointment can be regularized but an illegality cannot be legalised. Thus the recommendation of the petitioners made by the Village Education Committee is void ab initio .

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So far as petitioner No. 2-Ajay Paswan is concerned, admittedly his date of birth is 5^th June 1990, which is apparent from his matriculation certificate and he was recommended to be appointed as a para teacher, sometime on or before 20.5.2006 by the Village Education Committee. Even if the first

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recommendation was made on 20.5.2006, then also, he was less than 18 years on the date of recommendation. He was admittedly a minor. Admittedly, he did not have minimum qualification, additionally he was a minor on the date of selection. A minor could not have been appointed as a para teacher.

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Thus the entire selection process of these two petitioners is illegal and void ab initio and is nothing but a back door entry. A back door entrant should be removed in the same manner in which he has entered. In this case, I find that an enquiry was conducted and the admitted fact surfaced, even though the complainant has stated that he has not filed the complaint, but the same will have no effect because the facts mentioned in the complaint was found to be correct after the proper inquiry. The petitioners were also given opportunity to file explanation, which they have availed. It is not necessary to give personal hearing to the petitioners in this case, where their appointment itself is by fraud and is illegal.

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Thus I find no merit in this writ petition. The respondents were well within the jurisdiction in dismissing the petitioners. This writ petition is dismissed . 12. In view of final order passed in the main writ petition, both interlocutory applications being I.A. Nos. 5179 of 2019 and I. A. No. 11017 of 2022 are disposed of .

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(ANANDA SEN, J.)

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Anu/-CP2.

Surender Mirdha v. the State of Jharkhand

Case brief

What is this about?

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Surender Mirdha v. the State of Jharkhand

Case brief

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