Allowed

Md.akram and Ors. v. The State Of Bihar and Ors.

Patna HC11 Dec 2012CWJC/10979/2012

Case brief

AI extract

What is this about?

The Patna High Court set aside an order terminating nine Assistant Teachers because their training qualifications were deemed invalid. The Court relied on pre-NCTE government clarifications validating such qualifications. It criticized the State for a negligent counter affidavit and ordered the teachers' reinstatement.

What did the court decide?

Impugned order set aside; petitioners reinstated with full salary for intervening period; liberty granted to State to verify qualification dates.

Md.akram and Ors. Vs The State Of Bihar and Ors. — Service and Employment | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10979 of 2012

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====================================================== 1. Md. Akram S/O Habizuddin Resident Of Village + P.O.- Mahsauli, P.S. Bausi Basaithi, District- Araria 2. Md. Ali Azhar Rahi S/O Late Md. Sultan Baksh Resident Of Village + P.O. Jhaa, P.S. Terhagadh, District- Kishanganj 3. Md. Ansar Alam S/O Abdul Zabbar Resident Of Village- Sripatol, P.O. Ajher, P.S. Balrampur, District- Katihar 4. Quazi Tawshif Alam S/O Kazi Abush Subhan Resident Of VillagePindhal, P.O. Baltar, P.S. Azam Nagar, District- Katihar 5. Md. Manzar Alam S/O Md. Muzaffar Alam Resident Of Village- Samdo Tola, Ishlamia, P.O. Basaitha, P.S. Benipatti, District- Madhepura 6. Md. Mohsin Raja S/O Md. Nawab Ali Resident Of Village- Chhotipiroi, P.O. Piroi, P.S. Goraul, District- Vaishali 7. Md. Anwar Ahmed Ashrafi S/O Moulana Nauruddin Ashraf Resident Of Village- Simalwari, P.O. Ashjamoiya, P.S. Baisi, District- Purnea 8. Monazir Ahmad S/O Nasimuddin Resident Of Village- Khajuraha, P.O. Harewa, P.S.- Salakhua, District- Saharsa 9. Wasean Ahmad S/O Shabbir Ahmed Resident Of Village- Mahuwara, P.O. Patrar, P.S. Aurai, District- Muzaffarpur .... .... Petitioner/s Versus 1. The State Of Bihar Through Principal Secretary, Human Resources Development Department, Government Of Bihar, Patna 2. The Joint Secretary, Department Of Education, Govt. Of Bihar, Patna 3. The Director, Primary Education, Government Of Bihar, Patna 4. The Regional Deputy Director Of Education, Saharsa 5. The District Education Officer, Saharsa .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajendra Pd. Singh, Sr. Adv. Mr. Mukesh Kumar Singh, Adv. For the Respondent/s : Mr. Abhay Shankar Jha SC-14 Mr. Sanjay Kumar Jha, A.C to S.C.-14. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 6 11-12-2012 Learned counsel for the petitioners prays for and is permitted to correct the typographical error in the address of petitioner no. 5, to be read as “Madhubani” in place of “Madhepura”. Permission is accorded.

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Heard learned counsel for the petitioners and the

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State.

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The petitioners are aggrieved by order dated 10.5.2012 passed by the District Education Officer at Saharsa. It cancels the appointment of the petitioners as Assistant Teachers pursuant to a Government instruction dated 9.5.2012 on the ground that their training qualifications from the “Jamia Urdu Aligarh, Uttar Pradesh”, was invalid, the institution not being recognized by the NCTE and the name of the institution did not figure on the website of NCTE.

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Learned counsel for the petitioners submits that they attended the course during session prior to coming into force of the NCTE Act. The examinations for the respective years 1995/1996 were held delayed in 1996 and 1997 respectively. The NCTE and the Government of India have both clarified on query by the State that if the qualifications were from the aforesaid institution prior to 1997, it could not be a bar to employment on the ground of non recognition by the NCTE. All these issues could have been placed before the respondents if they had given an opportunity to the petitioners to place the facts and then the respondents may have taken a considered decision. The orders for termination are unilateral based on incomplete appreciation of issues and facts including orders of the Government of India and the NCTE. By a letter dated 13.9.1994, the Government of Uttar Pradesh had

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granted approval to the institution and which fact could also have been placed only if the respondents would have granted an opportunity. Reliance has also been placed on a Bench decision of the Allahabad High Court in Writ Petition No. 3222(MS) of 2005 that certificates issued by the aforesaid institution before 11.8.1997 were valid.

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A counter affidavit has been filed by one Sri Satyendra Prasad Singh, Deputy Director, Primary Education, Bihar, Patna. He states that he is well acquainted with the facts and circumstances of the case. It is acknowledged that his first counter affidavit did not meet the approval of the Court and he was required to file a fresh affidavit. He then states that he reiterates the contents of the earlier affidavit. The Court need say no more. On merits the counter affidavit in Paragraph-5 states that Annexure-10 series to the writ application reflects that the training session was of the year 1996 and the examination was held in February, 1997 after the NCTE Act has come into force on 1.7.1995. A bare perusal of Annexure-10 series demonstrates that it does not mention the session when the course was attended but mentions the year when the examination was to be held in 1995 or 1996 but that it was held in 1996 or 1997. The fact that the certificates may have been issued at a subsequent date was irrelevant and has rightly not been raised by the respondents. The counter affidavit then again reiterates that the institution

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does not figure on the Website of the NCTE as a recognized institution reiterating the impugned order.

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On 29.6.2012, the Court had framed a specific question to be answered by the respondents in view of the instructions of the Ministry of Human Resource Development, Government of India with regard to pre NCTE qualifications (dated 5.2.2010 at Annexure-19 to the writ application). The counter affidavit is completely silent and prefers to ignore the document as also the order of the Court.

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Learned counsel for the State made a feeble attempt to suggest that there was no material placed by the petitioners that under the letter dated 5.2.2010 of the Union of India, the institution had valid recognition from the Government of Uttar Pradesh when the petitioners attended the course. The counter affidavit does not raise any such issue. It has already been noticed that the petitioners have referred to a Government order of the Uttar Pradesh Government and a Bench decision of the Allahabad High Court. These were issues which could have been placed before the respondents provided the petitioners had been given an opportunity.

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The respondents have then relied upon an order in C.W.J.C. No. 10953 of 2012 (Pramod Kumar Singh Vs. The State of Bihar). The judgment has no application to the facts of the case as it related to an institution registered under the

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West Bengal Societies Registration Act, the facts being functionally different, with the Court holding that the institution did not appear to have recognition from any University or any other kind of recognition relevant prior to the NCTE Act. The case is therefore clearly distinguishable. Even otherwise the order was set aside on the ground for violation of natural justice for reasons discussed therein.

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The matter relates to appointment of Assistant Teachers for imparting education to children up to the level of middle school. The issue before the Court is the eligibility of the petitioners for imparting education to children who shall be the next generation in the State. The casualness with which the deponent has treated his responsibility for assisting the Court in dispensation of justice severely disappoints the Court. The repeat opportunity provided to him for filing a proper counter affidavit has been taken very casually by him. The Government reposed trust in him to protect its interests by filing a proper and detailed counter affidavit answering all issues. The duty of the State was to assist the Court and leave the conclusions to the Court. The Government did not authorize the deponent to file incomplete affidavits not answering queries raised by the Court in its order much less reading and answering the pleadings in the writ petition. The Court is constrained to observe that the counter affidavit is negligent.

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No issue arising for determination has been answered. The petitioners have placed before the Court a letter dated 21.9.2012 written by one Sri Akhilesh Kumar Pandey (Director, Research and Training) in the Education Department, Bihar bearing No. 748 addressed to the NCTE seeking clarifications with regard to the qualifications like those possessed by the petitioners from the same institution. The NCTE replied to it on 13.10.2012 under the signature of its Deputy Secretary, Dr. A.B. Sharma. Even if the Court were to decline to look into it because it is not a part of the record of the case, surely it must have been a part of the record of the Government file which the deponent was expected to read properly and then file an affidavit. However, the Court refrains from proceeding on those aspects.

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It is however considered necessary to direct that the Principal Secretary in the department of Human Resources Development shall take notice of the casual counter affidavit filed by the deponent in his administrative jurisdiction.

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In (1994) 2 SCC 600 (Union of India v. Rahul Rasgotra,) it has been held as follows:-

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“14. Before parting with this case, we are constrained to place on record our deep distress at the manner in which the cases on behalf of the Government are generally conducted even in this Court and also when the Government comes to this Court to overcome the consequence of an adverse order made against it. We do so with a feeling almost

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of despair since our constant lament orally and, at times, even in writing has so far evinced no appropriate response for improvement. On a similar occasion, this Court in Union of India v. A. Radhakrishnan , observed thus :

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“This matter brings to the fore once again the ineptitude with which litigation is conducted quite often on behalf of the Government of India and State Governments even when important issues having lasting and wide repercussions are involved. The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units. In spite of this fact, to support validity of the impugned policy the required materials were not produced in the High Court and to overcome the adverse decision several opportunities given by us to produce the entire relevant record were not availed. The learned Additional Solicitor General informed us after several adjournments that better performance is not possible. We, therefore, concluded the hearing and proceed to decide on the available materials. It is indeed fortunate for the appellants that our conclusion is in their favour. ...”

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There is no improvement in the situation. An argument was advanced on behalf of the respondents that the cadre allocation to Respondent 1 was made prior to allotment of the Service to him on account of which it was invalid. Material documents to negative the same must be in possession of the Government of India but they were not produced before the Tribunal or even before us, in spite of opportunity given by us. The learned Additional Solicitor General expressed his utter helplessness in the matter and informed us that his efforts to obtain and produce those documents from the authorities concerned had failed. This shows the apathy of the persons responsible for the conduct of the case on behalf of the Government of India. We are not sure whether such lapses of the persons responsible for conduct of the case on behalf of the Government are deliberate or inadvertent but they are certainly culpable which need to be investigated by the authorities concerned to

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identify the delinquents and punish them in public interest. It is time that the derelicts are also held accountable and liable for the loss of public money due to their lapses. The stage is now reached for taking drastic steps to arrest further decadence and to implement the avowed promises held out for improvement of the working of the system. Governments being the largest litigants, radical improvement is needed in the functioning of their machinery by reducing frivolous litigation and ensuring proper conduct of the necessary litigation. Unless the desirable steps in this behalf are taken in the right earnest, any number of seminars and conferences to devise means for reducing the backlog in courts is an exercise in futility and the resolutions made therein, are empty slogans. We reiterate this with the fond hope that the authorities concerned would wake up to the true malaise and work to make the programme of improving its machinery, a reality.”

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That the situation has shown no improvement despite

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the anguish of the Supreme Court is apparent from in (2010) 1 SCC 512 ( Urban Improvement Trust, Bikaner v. Mohan Lal) at Paragraph-10 as follows:-

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“10. Unwarranted litigation by Governments and statutory authorities basically stems from the two general baseless assumptions by their officers. They are:

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( i ) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.

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( ii ) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the court and secure a decision.

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The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of

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litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision-making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision-making to courts and tribunals.”

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The records as they now stand the NCTE and the Government of India have stated in unison that qualifications obtained from the aforesaid institution prior to 1997 are valid and cannot be invalidated for absence of NCTE recognition, as it related to pre NCTE period.

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The petitioners had discharged duties for approximately four months before they came to be terminated by the impugned order. If the appointment on the face of it was illegal pursuant to the qualification from what was undisputedly an unrecognized institution, matters would have been entirely different. After appointment, the petitioners must have planned their livelihood, secure of their job till they have received the present jolt. They will now stand reinstated by the orders of the Court. The termination was without following any basic procedure, let alone a proper enquiry. Even the proceedings before the Court have been treated with utmost casualness by the respondents. The petitioners are held entitled to full salary for the intervening period. It is left open for the Government to decide whether it shall pay the salary from the Government coffers or after recovering it from those who arbitrarily and hastily wronged the petitioners.

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The impugned order dated 10.5.2012 is set aside. Liberty is however granted to the State to factually verify for their satisfaction that the qualifications of each of the petitioners related to a period prior to 11.8.1997. The writ application is allowed.

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P. Kumar/- (Navin Sinha, J)

Md.akram and Ors. v. The State Of Bihar and Ors.

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Md.akram and Ors. v. The State Of Bihar and Ors.

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