Allowed

Nawal Kishor Pathak v. the State of Jharkhand

Jharkhand HC11 Sept 2024WPC/3326/2023

Case brief

AI extract

What is this about?

A teacher appointed in 2019 after another candidate's candidature was rejected was terminated in 2023 pursuant to a writ order favouring that candidate. The High Court found the show-cause notice issued after the termination decision, violating natural justice, quashed the termination and remitted the matter for a fresh decision within twelve weeks.

What did the court decide?

Termination order dated 23.06.2023 quashed and set aside; matter remitted to respondents for fresh decision after following natural justice within 12 weeks.

Nawal Kishor Pathak Vs the State of Jharkhand — Service and Employment | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3326 of 2023

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Nawal Kishor Pathak, aged about 57 years, son of Late Ayodhya Nath Pathak, resident of village Jitpur, P.O. Pipra, P.S.Pipra, District-Palamau. ..… Petitioner

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Versus

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1.The State of Jharkhand.

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The Principal Secretary, School Education and Literacy Department, Govt. of Jharkhand, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.

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The Director, Primary Education, School Education and Literacy Department, Govt. of Jharkhand, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.

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The Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Palamu, P.O. and P.S. Daltonganj, District Palamu.

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The District Superintendent of Education, Palamu, P.O. and P.S. Daltonganj, District Palamu.

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Pradip Kumar, son of Narsingh Prasad, Upgraded Middle School, Banshikhurd, Village-Banshikhurd, P.O. Manatu, P.S. Manatu, District-Palamau.

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.... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. D.C.Mishra, Adv

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Mr. Abhijeet Anand, Adv. For the Respondent : Mr. N.K.Pandey, A.C. to S.C. (L&C)I

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08/Dated: 11^th September, 2024

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Heard learned counsel for the parties.

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2. The instant writ application was initially preferred by

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the petitioner for the following reliefs;

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(i) For quashing of decision dated 19.04.2023 taken by the DEEC,

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Palamu, informing by notice dated 10.06.2023 (Annexure – 8) issued by

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the Respondent no. 5 wherein a decision has been taken to cancel the appointment of petitioner by DEEC, Palamu dated 19.04.2023 and the said notice has not been served to petitioner.

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(ii) For quashing of letter no. 1017, dated 15.06.2023 (Annexure – 10) issued by the respondent no. 5 whereby the reply dated 13.06.2023 filed by the petitioner was not found satisfactory and therefore, petitioner was directed to file another reply within 2 days.

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(iii) For direction upon the respondents to allow the petitioner to smoothly function on the post of TGT in Government Middle School, Mayapur, against the vacant post on 14.06.2019 after counseling pursuant to the order passed in L.P.A. No. 175 of 2019, 199 of 2017, 186 of 2017 of its compliance departmental letter no. 662 dated 02.05.2019 and accordingly held counseling on 03.06.2019. Thereafter, the DEEC in its meeting dated 12.06.2019, took a decision for appointment of Primary Teacher (class VI to VIII) Para category, vide memo no. 948 dated 14.06.2019 and after appointment the petitioner has been continuously discharging his duties.

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(iv) Operation/ implementation of the decision dated 19.04.2023 issued by the DEEC, Palamu, and letter dated 15.06.2023 issued by the respondent no. 5 may kindly ordered to be stayed.

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During pendency of this writ application the petitioner has been terminated from his service from the post of Graduate Trained Teacher (Language) vide memo no. 1050 dated 23.06.2023, issued by the respondent no. 5. Accordingly, the petitioner has also assailed the impugned order of termination by filing amendment application which was allowed by this court.

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3. Learned counsel for the petitioner referring to the pleadings made in in the writ petition submits that the petitioner passed graduation from Magadh University, Gaya. On 01.03.2004, he was appointed on the post of Para Teacher in the Upgraded Middle School, Gajna within Palamu district. The petitioner also did Diploma in Primary Education from IGNOU and passed Teachers Eligibility Test (Class I to V) and

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(Class VI – VIII).

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He further submits that the petitioner applied for the post of Assistant Teacher pursuant to an advertisement no. 04/Palamu/2015 for class VI to VIII and he was directed to appear in counseling on 03.06.2019 at 8:00 Am to 7:00PM. Subsequently, final merit list was issued and the name of the petitioner stands at serial no. 5; whereas respondent no. 6 stands at serial no. 2.

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He further submits that the candidature of respondent no. 6 has been rejected by the DEEC, Palamu on the ground that respondent no. 6 undergone training in the B. Ed. Course as a regular candidate while he was in service as a para teacher. As a result, the petitioner has been appointed pursuant to the decision taken by the DEEC, Palamu on 12.06.2019 for Upgraded Middle School, Mayapur for the post of Assistant Teacher by memo. No. 948 dated 14.06.2019 issued by the respondent no. 5. He was directed to join and accordingly petitioner joined service on 24.06.2019 in the office of DSE, Palamu.

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Thereafter, the petitioner relieved from the said office and joined in the office of Area Education Officer, Hussainabad. He was again relieved on 08.07.2019 and was directed to join the place of posting and accordingly petitioner joined on 09.07.2019 and was continuously discharging his duties.

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4. It has been submitted that the educational qualification of the petitioner has been verified from the institution and thereafter, payment of salary of the petitioner has been made accordingly. However, all of a sudden respondent no. 5 issued a letter dated 10.06.2023, directing the petitioner to reply under natural justice, since the respondent no. 6 filed a writ application being W.P.(S) No. 2719 of 2020 ; whereby the respondent no. 6 was directed to be appointed and therefore the DEEC has taken a decision dated 19.04.2023 to cancel the appointment of the petitioner. The petitioner sent a detailed reply; but he received 2nd show-cause notice by the respondent no.5, since earlier reply dated 13.06.2023 is not satisfactory.

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5. The petitioner again made detailed reply before the respondent no. 5 on 24.06.2023 and also asked to supply some relevant documents of the trained teacher for exact reply including the decision of the DEEC (The Committee); however, the same was not supplied. The petitioner again made a reply on 28.06.2023 and also stated that he has filed a writ application before the High Court being WPS No. 5454 of 2023 , and also requested not to pass any adverse order. However, the petitioner received memo no. 1050 dated 23.06.2023 issued by respondent no. 5 through which the petitioner has been terminated from service from the post of Graduate Trained Teacher (Language), since reply filed by the 4

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petitioner is not satisfactory. The said Impugned Order has been served to the petitioner on 01.07.2023.

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6. It has been submitted that in W.P.(S) No. 2719 of 2020 the petitioner was not made party nor any prayer for cancellation of the appointment of the petitioner has been made. As a matter of fact, the respondent no. 6 challenged the rejection of his candidature.

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7. The case of the petitioner is that the said Show-cause notice is not tenable in the eyes of law as the same has been issued after the decision of termination of the petitioner by the DEEC. As a matter of fact, the impugned order is liable to be quashed and set aside and the respondent may be directed to reinstate the petitioner.

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8. Learned counsel for the respondents submits that the entire matter was placed in the meeting of District Education Establishment Committee, Palamau on 13.02.2023 and as per the decision of the committee, the Deputy Commissioner, Palamau had sought direction from Director, Primary Education, Jharkhand vide letter no. 371 dated 28.02.2023 with regard to order passed by the High Court in the matter of respondent no.6.

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He further submits that on receipt of direction from the Directorate, entire matter was placed in the meeting of District Education Establishment Committee, Palamu and the claim of the respondent no. 6 was verified from the merit list, 5

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wherein it was found that the respondent no.6 has the merit marks of 57.4198 and his name was at serial no.2; whereas merit marks of petitioner is 57.3017.

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Since the merit marks of the petitioner was much lower than the respondent no. 6; therefore, it was decided by the committee to issue show cause notice to the present writ petitioner. Accordingly, show cause notice was issued to the petitioner to provide him opportunity, vide letter no. 978 dated 10.06.2023 and the same has already received by him.

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9. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, it appears that the petitioner did Diploma in Primary Education from IGNOU and passed Teachers Eligibility Test (Class I to V) and (Class VI – VIII). Pursuant to an advertisement no. 04/Palamu/2015 for class VI to VIII, the petitioner participated and he was directed to appear in counseling on 03.06.2019 at 8:00 Am to 7:00PM. Subsequently, final merit list was issued and the name of the petitioner stands at serial no. 5; whereas respondent no. 6 stands at serial no. 2.

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As a result, the petitioner has been appointed pursuant to the decision taken by the DEEC, Palamu on 12.06.2019. The candidature of respondent no. 6 has been rejected by the DEEC, Palamu and accordingly petitioner joined service on 24.06.2019 in the office of DSE, Palamu.

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10. All of a sudden respondent no. 5 issued a letter dated 10.06.2023, directing the petitioner to reply under natural justice, since the respondent no. 6 filed a writ application being W.P.(S) No. 2719 of 2020 ; whereby the respondent no. 6 was directed to be appointed and therefore the DEEC has taken a decision dated 19.04.2023 to cancel the appointment of the petitioner. Finally, the petitioner received memo no. 1050 dated 23.06.2023 issued by respondent no. 5 through which the petitioner has been terminated from service from the post of Graduate Trained Teacher (Language), since reply filed by the petitioner is not satisfactory. The said Impugned Order has been served to the petitioner on 01.07.2023.

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11. It is pertinent to mention here that from bare perusal of Annexure-8 to the writ application which is the letter-cum show cause issued under letter No.978 dated 10.06.2023 issued by the District Superintendent of Education to the petitioner clearly indicates that the appointment of the petitioner has been rejected by the DEEC prior to this letter. For brevity, relevant part of the letter dated 10.06.2023 is extracted hereinbelow:-

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“जिलाजि्ቌाअधी्ቌक , पलामू पत्ाांक - 978 / ्ቚे षकः - जिलाजि्ቌाअधी्ቌक , पलामू। सेवा में , ्ቦ ीनवलजकिोरपाठक ्በ ातक्ቚजिज्ቌतभाषाजि्ቌक , रा०म०जव० मायापुर , नौडीहाबािार।

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मेजिनीनगरजिनाांक - 10/06/2023

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जवषय :- नैसजगिक्቗ ायकेतहतअपनाप्ቌ रखकेसांबांधमें। नतम “........्ቦीनवलजकिोरपाठक कामेधाांक 05-57.3047 है।इस्ቚकारसबसे्቗ू अांक आपका होता है। जिला जि्ቌा स्थापना सजमजत , पलामू के्ቛ ारा सविस्ቜ जत से जनर्िय जलया गया जक पि चार हैं और अ्ቜ जथि पाांच है। इस्ቚकार अांजतम मेधाांक आपकाहोनेकेकारर्आपकीजनयु्विर्ቌ करतेहुएआपकेपिकेजवरू्ቍ ्ቦी्ቚिीप कुमार पारा जि्ቌक , उ्ሹृ ०म०जव० बांिीखुिि , मनातू की जनयु्वि करतेहुए्በ ातक्ቚ जिज्ቌत भाषा केपि पर पिा्वस्थत करनेका जनर्िय जलया गयाहै। अतः जनिेि जिया िाताहैजक पत्जनगित कीजतजथ सेिोजिनोांकेअांिर नैसजगिक्቗ ाय केतहत आपको अपनाप्ቌ रखनेकाअवसरजियािाताहै।

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At this stage, it is also necessary to indicate that in W.P.(S) No. 2719 of 2020 the petitioner was not made party nor any prayer for cancellation of the appointment of the petitioner has been made. As a matter of fact, the respondent no. 6 challenged the rejection of his candidature, further there was no mention of any termination of the petitioner in the High Court order.

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12. Furter the said Show-cause notice is not tenable in the eyes of law as the same has been issued after issuing of the decision of termination by the DEEC. Since the decision of termination is dated 19.04.2023 and the show-cause was issued on 10.06.2023; as such the show-cause Notice was a mere formality, inasmuch as the committee has already taken a decision to terminate the petitioner and thus; the same has no legs to stand in the eye of law.

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13. As a matter of fact, this query was also made by the coordinate bench in the order dated 12.07.2023 of the

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present writ application; and in the counter affidavit filed by the respondents there is no specific reply made with respect to this query. Thus, it can safely be inferred that prior to the decision of termination; no opportunity was given to the petitioner. This is in gross violation of the Principle of Natural Justice.

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Hence, the order of termination is fit to be quashed and set aside. This petitioner has been terminated for his no fault, as his entire candidature was approved by the concerned respondents and his entire candidature as well as the records submitted by him were found to be genuine. Furter, there was no misrepresentation made on the part of the petitioner.

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Further, no copy of the decision of termination dated 19.04.2023 by the DEEC has been brought on record by the respondents in spite of the direction of this Court.

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14. It is also evident from perusal of Annexure- D of the counter – affidavit, that the DC Palamu sought direction from the Director, Primary Education-Respondent No.3 to the effect that since 8 posts of teachers are laying vacant and one post for respondent no. 6 can be made in compliance to the order made in the WP(S) No. 2719 of 2020 , but no such direction of the Director has been brought on record by the respondents.

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15. Having regards to the aforesaid discussions, the impugned order of termination dated 23.06.2023 is fit to be, 9

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and is hereby, quashed and set-aside.

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The matter is remitted back to the concerned respondent to decide the case of the petitioner afresh, after following principles of natural justice and pass an appropriate order, keeping in mind Annexure- D of the counter – affidavit, that the DC Palamu sought direction from the Respondent No.3 that 8 posts of teachers are still laying vacant.

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Since it is a case of a teacher, and the fate of children is on stake and several posts are is lying vacant; as such the concerned respondent is directed to take a fresh decision in the case of the petitioner as early as possible, but not beyond a period of 12 weeks from the date of receipt/production of copy of this order.

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16. As a result, the instant writ application stands allowed, in the manner indicated hereinabove.

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(Deepak Roshan, J.)

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Amardeep/

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Nawal Kishor Pathak v. the State of Jharkhand

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Nawal Kishor Pathak v. the State of Jharkhand

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