1. This writ application has been filed seeking the following reliefs:-
“(I) For commanding the respondent authorities to pay the due salary of the petitioner since 11.09.2015 to till date with admissible interest. (ii) For setting aside the office order vide memo no.1346/Jamui dated 02.09.2019 (Annexure-14) passed by the District Programme Officer (Establishment), Education Department, Jamui (respondent no.5) whereby and whereunder the grievance of the petitioner for payment of his due salary has been rejected on baseless ground only because due to non-fulfillment of his illegal demand and further be pleased to stay the aforesaid Annexure-14 during pendency of the instant case.
(iii) For commanding the higher authority to take immediate action against the respondent no.5 or send him jail, who has misled this Hon’ble Court, if there is no fault on the part of the petitioner.”
2. During the pendency of this writ application, I.A. No.1 of 2020 has been filed by which the writ application has been sought to be amended praying for the following reliefs:-
“(a) For setting aside the Memo no.02/Dulampur dated 27.01.2020 (Annexure-19 to this application) issued under the signature of the Panchayat Secretary-cum-Panchayat Teacher Niyojan Ekai, Dulampur, Chakai, Jamui (Respondent no.9) whereby and whereunder appointment of the petitioner on the post of Panchayat Elementary Teacher on 31.08.2015 (Annexure-2 of the writ petition) has been cancelled.
(b) For commanding the higher authority to take immediate action against the respondent nos. 5 and 6 who have harassed the petitioner intentionally due to non-fulfilment of their illegal demand and further be pleased to grant heavy cost of Rs.50,000/- each against the respondent nos.5 and 6 respectively, payable to the petitioner, if there is no fault on the part of the petitioner.”
2A. The I.A. is of the year 2020, there is no opposition to treating it as part and parcel of this writ application, hence, it is allowed.
3. The writ application as well as interlocutory application have been heard together.
Brief Facts
4. It is the case of the petitioner that he had passed his secondary level in the West Bengal Secondary Examination, Madhyamik Pariksha 2005 in second division and the intermediate examination in the year 2008 from Jharkhand Academic Council, Ranchi in first division.
5. In the writ application, there is no statement at all with regard to any advertisement and/or an application, if any, made by the petitioner under advertisement for appointment as Elementary Panchayat Teacher. The petitioner has made a statement straightaway in paragraph ‘5’ of the writ application that the District Education Officer, Jamui (respondent no.6) vide his letter no.836 dated 08.08.2015 sent to the Panchayat Sachiv of the concerned employment unit a merit list of the selected Elementary Panchayat Teacher after verification by the enquiry committee. Annexure- ‘1’ to the writ application is a copy of the letter no.836 dated 08.08.2015 from which it appears that in the 4th phase of teachers employment during the year 2014-15, the final merit list of the concerned employment unit had been sent for verification and the same was being returned by the then District Education Officer, Jamui to the Panchayat Secretary. The reference of letter sent by the employment unit to respondent no.6 is not mentioned in Annexure- ‘1’. Several instructions have been given vide Annexure- ‘1’ and one of them is that the concerned employment unit shall examine/verify the teachers eligibility test certificate of the candidates and only thereafter appointment letter shall be issued.
6. The letter (Annexure- ‘1’) contains a stipulation that there is a direction from the department to complete the selection process according to modified time schedule. A copy of the list enclosed with Annexure- ‘1’ would show that the final merit list of Panchayat Dulampur in Block-Chakai, District-Jamui pertains to the panchayat teacher employment year 2012 and merit list was prepared to fill up the vacant post of the said employment year 2012 from the applications which were received in the year 2014-15. The name of this petitioner appeared at serial no.14. By enclosing Annexure- ‘2’ which is letter no.09 dated 31.08.2015 under signature of the Panchayat Secretary of the employment unit, the petitioner claims that he had received information of his selection and was called upon to join in the Primary School, Badgunda. He claims that he had submitted his joining to the then Panchayat Secretary of Gram Panchayat Raj on 11.09.2015 vide Annexure- ‘3’ to the writ application. It is an admitted position at this stage that the petitioner did not go to the Primary School at Badgunda to join and he was not rendering his service in the school.
7. On record there is a letter of the petitioner written on 29.08.2016 to the Block Education Officer, Chakai (Annexure-‘5’) in which he has brought to the notice of the Block Education Officer that he was working in the employment unit itself from 11.09.2015 to 05.07.2016 and when he was relieved by Panchayat Secretary on 05.07.2016 and went to join in the said school, In-charge Principal of the school did not accept his joining and since then he is working in the employment unit itself.
8. There is, however, neither any letter of the Pachayat Secretary allowing the petitioner to join in the employment unit nor there is any letter showing that he was relieved on 05.07.2016 from the employment unit to join in the school. Contrary to the claim of the petitioner, there is a relieving letter (Annexure- ‘6’) issued on 28.10.2016 under signature of the Panchayat Secretary Gram Panchayat Raj Dulampur (Chakai) in which he has mentioned that the petitioner had submitted his joining in his office where he has been engaged in work till 28.10.2016.
9. The petitioner claims that vide letter dated 09.11.2016 (Annexure- ‘8’) he submitted his joining to the headmaster of the Primary School, Badgunda where he is rendering his duties till date without any blemish but his salary has not been paid. He also claims that he was sent for training by the respondent authorities and he became a trained teacher since 27.04.2019. Annexure- ‘11’ is a certificate dated 27.04.2019 of N.I.O.S. (D.El.ED.) Study Centre saying that the petitioner has successfully completed two years training during the session 2017-19.
Directions of this Court in CWJC No.15619/2019 (Enquiry as to validity of appointment-ordered)
10. The petitioner moved this Court in CWJC No.15619 of 2019 seeking a direction for payment of his salary. The respondents had not filed any counter affidavit in the said case, however, the learned Writ Court took a view that the issue of payment of salary requires factual enquiry as to validity of appointment and actual working for which the District Programme Officer (Establishment), Jamui is the competent authority. The learned Writ Court directed the District Programme Officer (Establishment), Jamui to enquire into the matter and if it is found that appointment of the petitioner is legal and valid and he has actually worked, ensure payment of salary and all consequential benefits to him. This Court directed that necessary decision in this regard must be taken by the respondents within a maximum period of 60 days from the date of receipt/production of a copy of the order.
(underline to supply emphasis)
Findings of the D.P.O. (Establishment), Jamui
11. Petitioner submitted his representation in the light of the order of this Court in CWJC No.15169 of 2019 with the District Programme Officer (Establishment), Jamui. The District Programme Officer (Establishment), Jamui called for the records relating to the selection of the petitioner from the concerned Gram Panchayat and after perusal of the records he recorded his findings in the impugned office order as contained in memo no.1346 dated 02.09.2019 (Annexure- ‘14’ to the writ application) which are being reproduced hereunder for a ready reference:-
Accordingly, the present writ petition is disposed of with a direction to the District Programme Officer (Establishment), Jamui to enquiry into the matter and if it is found that appointment of the petitioner is legal and valid and he has actually worked, ensure payment of salary and all consequential benefits to him. Necessary decision in this regard must be taken by the respondents within a maximum period of 60 days from the date of receipt/production of a copy of this order.
With the aforesaid, the writ petition stands disposed of.
(underline is mine)
12. From the findings recorded in the impugned office order, it appears that the name of the petitioner was not mentioned in the infromation which were sent to the District Programme Officer (Establishment) in respect of the selected teachers during teachers employment year 2014-15. Further, the District Programme Officer (Establishment), Jamui being the competent officer noticed that the Panchayat Secretary had relieved the petitioner for joining in the concerned Primary school after more than one year which was not in accordance with the Service Rules, further the petitioner had submitted his joining on 09.11.2016 which was also against the Rules governing the selection of Panchayat Teachers. There is a specific finding that it seems to be a case of connivance among the Mukhiya/Panchayat Secretary and the Block Education Officer, Chakai as they have been involved in such acts which are in violation of the Rules.
13. This Court finds a specific reference to the departmental notification no.1769 dated 24.11.2014 by which instructions were given for carrying on the selection process of the teachers in primary schools during the year 2014-15. The said departmental notification clearly provided that the Central Government has, for class 1-8 notified in the Gazette of India dated 25.08.2010 the notification no.215 of the National Council for Teacher Education (hereinafter referred to as the ‘N.C.T.E.’) which provides for exemption to the State Government as regards the minimum teaching eligibility requirements only up to 31st of March, 2015. It is for this reason that the District Programme Officer (Establishment), Jamui observed that the exemption is valid only up to 31st March, 2015, therefore, any appointment of an untrained teacher after 31st March, 2015 was not valid and could not have been done. He held that since the petitioner was untrained and he was appointed by the panchayat secretary on 31.08.2015, his appointment was not legal. The D.P.O. (Estab.), Jamui, therefore, directed the Block Education Officer, Chakai to cancel all the appointment of untrained teachers done after 31st March, 2015 and also to lodge a First Information Report against the Mukhiya/Panchayat Secretary in the local police station.
Stand of the D.P.O. (Estab.), Jamui (R-5)
14. In this writ application when a counter affidavit was filed on behalf of the author of the impugned office order i.e. the D.P.O. (Establishment), Jamui, he defended his order. It is his specific stand that in the notification no.1769 dated 24.11.2014 issued by the department which has been called as ‘Departmental Notification’ (Annexure- ‘A’ to the counter affidavit of respondent no.5) it has been specifically provided that no appointment of an untrained teacher may be made after 31.03.2015. He continued with his stand that from the employment letter of the petitioner, it appears that the petitioner was appointed on 31.08.2015 and has joined on 29.10.2016 which is against the rules and the mandate of ‘N.C.T.E’. In his submissions, after 31.03.2015 only trained and TET pass candidates were to be appointed.
Rejoinder of the petitioner-Reliance placed on memo no.137 dated 25.03.2015 of R-3
15. In response to the counter affidavit of the respondent no.5, the petitioner came out with a rejoinder in which he enclosed a copy of the memo no.137 dated 25.03.2015 issued under the signature of Director, Primary Education, Government of Bihar, Patna based on which he contended that the selection process which had started earlier but could not be completed up to 31.03.2015 had continued under the same rules/conditions and even after 31.03.2015 untrained candidates would have been appointed in the Urdu as well as all other subjects. The petitioner has, therefore, taken a plea that his appointment as untrained teacher after 31.03.2015 was a valid appointment.
Some orders passed in course of hearing.
16. In course of hearing of the writ application on 20.07.2023, this Court enquired about the action, if any taken by the Block Education Officer to lodge a First Information Report against the Mukhiya and Panchayat Secretary of the employment unit in compliance with the order of the D.P.O. (Estab.). This Court wanted to know as to what have been done and if no action has been taken then why an appropriate direction be not issued by this Court against the other erring officials.
17. The case was listed for judgment on 24.07.2023. When the writ application was posted for judgment, this Court was informed by learned counsel for the petitioner that she had filed a supplementary affidavit online and hard copy of the same be taken on the record for consideration. This Court expressed its’ anguish on the manner in which without seeking lave of the Court the petitioner filed a supplementary affidavit, however, considering the prayer of learned counsel for the petitioner, this Court accepted the supplementary affidavit and decided to hear the matter afresh.
Affidavit of the District Education Officer (R-6)
18. The respondent no.6 filed an affidavit saying that the direction contained in impugned office order had not been carried out by the then Block Education Officer and thereafter the three others who came on the said post had not complied with the order. However, they have been proceeded against and the District Programme Officer has framed memo of charge against them.
19. At this stage, on 24.07.2023, this Court having noticed the memo no.351 dated 25.03.2015 issued by the then Director, Primary Education took note of the contents of the letter and finding that there were direct conflicts in the communication of the then Director, Primary Education vide his letter dated 25.03.2015 and that of the stand of the D.P.O. (Establishment), Jamui in his office order as regards the validity of the appointment of untrained teachers made after 31.03.2015, this Court called upon the respondent-State to take a view as to why in the facts of this case where lodging of the F.I.R. itself was delayed and neglected by the then Block Education Officers for all these years, this matter be not referred to the Vigilance Investigation Bureau for registration of a F.I.R. for investigation from all angles and this issue was left to be considered after the stand of the department would come on the record, this Court adjourned the matter.
20. It is important to note that this Court prima-facie observed that “the role of the then Director, Primary Education in issuing the letter dated 25.03.2015 needs to be examined...” This Court called for the stand of the department.
Post order dated 24.07.2023-Developments-change of stand and affidavit of Director, Primary Education (R-3)
21. On 31.07.2023, a counter affidavit and a supplementary counter affidavit came to be filed on behalf of the respondent no. 3. The Counter affidavit of R-3 does not say that it is for and on behalf of the department. It is not known whether it is duly approved by the Department. The Deputy Director, Primary Education, Government of Bihar sworn the counter affidavit on behalf of the Director, Primary Education (respondent no.3). He was authorized to do so as stated in paragraph ‘3’ of the affidavit. In the counter affidavit, there is not only a change of stand rather the R-3 informed this Court that he has directed for payment to the petitioner vide memo no.1052 dated 30.07.2023 treating 31.08.2015 to 27.07.2020 as working period. In this manner, in fact R-3 upturned the decision of the D.P.O.(Estab.) which is impugned in the writ application, though not directly but indirectly. He has stated in paragraph ‘17’ of the counter affidavit that as per opinion of the Law Department, Government of Bihar, the Department had decided that in the present appointment process, untrained teachers can be appointed even after 31.03.2015 by the concerned employment unit.
22. Having said so, the respondent no.3 came with a plea that the appointment of the petitioner cannot be held to be illegal because of his appointment as untrained teacher after 31.03.2015. It is further stated that as per the provisions contained in the Right to Education Act and regulations made by the National Council of Teacher Education, it is mandatory to obtain training certificate on or before 31.03.2019 by the in-service teachers for being continued as teacher and as there was no proof of passing of training examination by the petitioner, a decision regarding continuity of his service shall be taken only after submission of required certificate in the light of the judgment of this Court dated 19.10.2022 passed in CWJC No.16124 of 2019 (Ataur Rahman & Ors. Vs. the State of Bhiar & Ors. by this Court.
23. The District Education Officer, Jamui (respondent no.6) has also filed a supplementary counter affidavit. He has, however not taken any divergent stand. It is stated that the FIR has been instituted against the then Panchayat Secretary Sri Manohar Singh bearing Chakai P.S. Case No.252/2023 under Section 420 and 406 of the Indian Penal Code lodged on 27.07.2023.
24. In its order dated 31.07.2023, this Court has taken note of the changed stand which came from respondent no.3 but on the said date because memo no.1052 dated 30.07.2023 which was mentioned by respondent no.3 in his counter affidavit was not on the record, this Court was unable to go through the same. This Court observed inter-alia as under:-
“….. Before directing payment of salary to the petitioner, whether the respondent no.3 is not required to satisfy himself with the proof of passing of the training examination by the petitioner as also the validity of the appointment after 31.03.2015 keeping in view the notification no.1769 dated 24.11.2014 (paragraph ‘15’) as contained in Annexure- ‘A’ to the counter affidavit of respondent no.5 barring appointment of untrained teacher after 31.03.2015? What kind of work was being taken by the Panchayat Secretary in his office for more than one year and how Respondent no.3 has satisfied himself on this point is not stated in his counter affidavit filed today.”
25. In paragraph ‘7’ and ‘8’ of its order dated 31.07.2023, this Court observed as under:-
“7. One thing is clear to this Court that the Respondent No. 3 has taken a decision to pay the petitioner, it is in his domain if he has found that the petitioner is entitled for the same but the Court is concerned because the Principle of Public Accountability and Fairness would require the Respondent No.3 not only to examine all such issues pointed out in the preceding paragraph.
8. If it is found that the petitioner is entitled for payment for the period he was illegally retained or deprived of rendering his service as a teacher then why not the persons who are responsible for keeping the petitioner out of service be fastened with the liability to make good the loss to the State Exchequer to the extent of the amount of salary and other emoluments which the petitioner would be getting for the period during which he was not working and rendering his service as a teacher. ”
26. This Court, therefore, called upon the Director, Primary Education to file his personal affidavit with the relevant materials/records including his reasoned order to address the aforesaid aspects in order to assist this Court. After passing of the order dated 31.07.2023, the petitioner filed a second supplementary affidavit with a statement that he has successfully completed Diploma in Elementary Education and passed the examination held in the session 2017-19 in his first attempt which was sought to be supported by way of a certificate dated 22.05.2019 enclosed as Annexure- ‘25’ to the second supplementary affidavit. On the said date, learned Advocate General appeared and sought adjournment to seek appropriate instruction. Thus, on 17.08.2023, the matter was adjourned to 04.09.2023. In the hearing which took place on 05.09.2023, a personal affidavit came to be filed on behalf of the respondent no.3. He has taken a stand that in view of the certificate enclosed by the petitioner the petitioner has been reinstated in service vide order contained in memo no.1523 dated 01.09.2023 as his case has been found covered under catetgory ‘A’ as per judgment of this Court in the case of ‘Ataur Rahman’ (supra).
27. Learned counsel for the petitioner contested this and made a submission that the petitioner would be covered under category ‘C’ of the judgment of this Court in the case of Attaur Rahman (supra) as according to her the date of issuance of certificate would not be significant and the petitioner would be taken to have completed his training in the year 2018 itself. It was also pointed out that in its earlier dated 31.07.2023, this Court had specifically called upon the respondents to answer as to why in case the petitioner is found entitled for payment for the period he was illegally retained or deprived of rendering his service, the persons who are responsible for keeping the petitioner out of service be not fastened with the liability to make good the loss to the State Exchequer to extent of the amount of salary and other emoluments payable to the petitioner. It has been submitted that the respondents have chosen not to speak on this issue.
Consideration
(Disapproval of the action of present Director during on-going hearing of the writ application)
28. At the outset, this Court would record it’s disapproval to the kind of steps which have been taken by the respondent no.3 during pendency of this writ application without being called upon by this Court to do so and the action being without seeking leave of this Court. His action at best should have been to the extent of examining the record and place before this Court the role of the then Director, Primary Education in the matter of issuance of letter no. 137 dated 25.03.2015. He had to place the matter before the department and then the stand of the department on the letter dated 25.03.2015 was to be placed. Instead, the respondent no. 3 not only took a stand with regard to the validity of the appointment of the petitioner, he went on to issue memo no. 1052 dated 30.07.2023 followed by a corrigendum vide memo no.1464 dated 29.08.2023 for release of the salary and declaring that the appointment of the petitioner was valid. Respondent no. 3 did not even think of the fact that the matter is sub-judice before this Court. This Court was in seisin of the matter, examining the impugned office order and in course of that having noticed the submissions of the parties called upon the department to take stand after making a prima-facie observation as to the role of the then respondent no. 3.
29. The present respondent no. 3 was not hearing an appeal/review or revision against the impugned office order. He, having issued the memos no. 1052 dated 30.07.2023 and memo no. 1464 dated 26.08.2023 during ongoing hearing of this case has acted beyond his authority and made an attempt to circumvent any adverse order by this Court pursuant to the prima-facie observations recorded in this Court’s order dated 24.07.2023.
No response of respondent no.3 on the issues flagged by this Court.
30. In it’s order dated 31.07.2023, this Court has indicated as has been taken note of in paragraph ‘24’ of this judgment, this Court raised issues which the respondent no. 3 had not taken care of while issuing memo no. 1052 dated 30.07.2023, principles of public accountability and fairness have been cited by this Court and respondent no. 3 was called upon to examine all such issues but to the utter dismay of this Court, in his personal affidavit respondent no. 3 is completely silent on those aspects.
Some issues arising on facts emerging from the records
31. In the aforementioned background of the facts and circumstances of this case, what strikes this Court are the following facts:-
(i) In the writ application, there is no averment that the petitioner had applied for appointment as primary teacher under any advertisement. He has straightaway referred a final merit list of the selected elementary panchayat teacher (untrained) which was sent by the District Education Officer, Jamui (respondent no.6) vide his letter no.836 dated 08.08.2015.
(ii) A perusal of the final merit list which is an enclsoure to the letter no.836 dated 08.08.2015 (Annexure- ‘1’ to the writ application) would show that it mentions “पंचायत शिक्षक नियोजन 2012 के तहत अवशेष रिक्ति के विरूद्व 2014-2015 में प्राप्त आवेदन (वर्ग 1-5) का अंतिम मेघा सूची, पंचायत दुलमपुर, प्रखंड चकाई, जिला जमुई ।” This also mentions General Teacher, Untrained. This gives an impression that the applications of the candidates named in the final merit list were received in the year 2014-15 to fill up the remaining vacant posts of the panchayat teachers selection year 2012. No copy of notification, if any, in this regard has been brought on the record to show that the selection was initiated only for untrained teachers or it was for both trained as well as untrained. The departmental notification no.7 -1769/Patna dated 24.11.2014 (Annexure- ‘A’ to the counter affidavit of R-5) nowhere shows that the selection process was initiated only for untrained teachers. This selection procedure was notified by the department after coming into force of the N.C.T.E. Regulation, 2014 on 12.11.2014 which clearly provided that there will be no relaxation with respect to the minimum eligibility qualification for appointment as teacher for class I-VIII.
(iii) The District Programme Officer (Establishment), Jamui has categorically recorded a finding that from the informations which have been made available to the department with respect to the employed/selected teachers during the teachers employment 2014-15, name of this petitioner is not mentioned. This is a very important fact. Further, he has held that the issuance of letter no.05 dated 05.07.2016 by panchayat secretary relieving the petitioner to join in a school after about one year is against the Rules.
32. For the aforesaid reasons, this Court finds that the Director, Primary Education (respondent no.3) should have treaded more cautiously over the order of the D.P.O. (Estab.) who had been authorized by this Court in CWJC No.15169 of 2019 to examine the validity of the appointment of the petitioner.
33. In this case, the D.P.O. (Establishment), Jamui (R-5) has held that the appointment of the petitioner cannot be said to be a valid appointment and in this regard he has inter-alia provided one of the reasons in paragraph ‘8’ of the impugned order which are being reproduced hereunder:-
34. Contrary to the aforesaid stand of the respondent no.5, respondent no.3 has come with a stand in paragraph ‘17’ of his counter affidavit and in support of his statements when he was called upon to swear a personal affidavit, he has enclosed Annexure- R-3/B which are in the nature of office notes and opinions available in the official records. Paragraph ‘17’ of the counter affidavit of respondent no.3 reads as under:-
“17. That it is humbly stated that the answering respondent examined the file related with the departmental letter no.251 dated 25.03.2015 which says that ‘as per the opinion rendered by the Law Department, Government of Bihar, the department has decided that in the present appointment process, untrained teachers can be appointed even after 31.03.2015 by the concerned Appointment Unit in all subjects Including Urdu.”
The veracity of this statement will be examined in this judgment here-in-after.
35. With the counter affidavit, the respondent no.5 has enclosed a copy of the notification no.1769 dated 24.11.2014 issued by the Department of Education, Government of Bihar (Annexure-A to the counter affidavit referred hereinabove) which is by way of a guideline to carry on the selection process against the remaining vacant posts of the year 2012 as per need in the primary schools during the year 2014-15. From this notification, it appears that the selection process was to be notified. It is however not specifically stated that the vacancies are to be notified in newspaper, the emphasis is on putting the notice on the notice board in the office of the Block Development Officer (in short ‘B.D.O.’) in case of panchayat teachers and a copy of the same to be placed on the notice board in the offie of District Educatn officer who will to the extent possible put the information on the website. Since there is no copy of notice if any published in a newspaper is on the record, this Court takes a view that there was no proper publication of notice.
36. Paragraph ‘15’ of this notification no.1769 is verbatively the same and one which have been mentioned by the The District Programme Officer (Establishment), Jamui in the impugned office order.
Validity of appointment of untrained teachers-statutory provisions and the departmental notification no.1769
37. The dispute with regard to validity of the appointment of the petitioner as an untrained teacher is to be examined with reference to the relevant statutory provisions which were in force and formed part of the notification no.1769. The letter no.137 dated 25.03.2015 is on record and the same must be looked into on the anvil of the statutory provisions keeping a question in mind as to whether on the face of the statutory provisions the letter dated 25.03.2015 could have been validly issued.
38. The letter dated 25.03.2015 reads as under:-
39. When this Court goes through the documents brought on record vide Annexure-R-3/B by respondent no.3 with his personal affidavit, this Court finds that with regard to appointment of Urdu teachers against 23000 posts there was an order of this Court staying the selection of Urdu Teachers as a result of which it was pointed out that the selection process may not be completed within the given period up to 31.03.2015. There was some agitation also by the Urdu candidates, therefore, when the file was moved, it was opined that in several judicial pronouncements, the Hon’ble Supreme Court as well as the Hon’ble High Court have taken a view that once the selection has been started under a particular rule/condition under the advertisement, the selection must be completed by following the same rules and procedures. In this regard, the judgment of the Hon’ble Supreme Court in the case of A.A. Calton and P. Mahendru were referred to. The then Law Secretary clearly opined that because with regard to the untrained candidates a time limit has been fixed by N.C.T.E., exemption with regard to the said time limit may either be given by the N.C.T.E. or the Hon’ble High Court and it would only be just and proper to make appointment thereafter, the same was endorsed by way of legal opinion. They said that process once started should be finished following the same rule and procedure. To this Court, it appears that none of the authorities of the department as referred above said that untrained candidates may be appointed even after 31.03.2015. To continue with a selection process as per the Rule(s) which were in existence at the time of initiation of the process is one thing but continuation with the selection process in the teeth of the statutory provision after the cut-off date of exemption i.e. 31.03.2015 would not be the same and one thing. It is well said that something which could not have been done directly cannot be allowed to be done indirectly. An order to act against the statutory provisions cannot sustain the test of law and the things must be done as provided in law or not at all. The department was not even competent to overreach the N.C.T.E. Regulation after expiry of the exemption period.
Letter No.137 dated 25.03.2015-in violation of law
40. This Court finds that when the then Director, Primary Education proceeded to issue letter dated 25.03.2015 he has incorporated that untrained teachers may be appointed even after 31.03.2015 not only in Urdu subject but in all other subjects. This was in violation of law. The process could have been continued but only those persons who fulfilled the minimum eligibility to become a teacher in primary class could have been selected. Why the R-6 sent a list of only untrained teachers is a mystery.
41. This part of the direction issued by the then Director, Primary Education vide memo no.3152 dated 25.09.2015 was contrary to and in violation of the notification no.1769 dated 24.11.2014 which was applicable to the selections of the primary teachers in the State during the year 2014-15. The fact remains that neither further exemption was sought for from N.C.T.E. nor any order of the Hon’ble Court was there to support the direction contained in letter dated 25.03.2015 saying that untrained teachers could have been appointed by the employment units even after 31.03.2015. In this manner, the appointments of untrained teachers after 31.03.2015 become wholly illegal and bad in law.
The views of D.P.O.(Estab.), Jamui upheld
42. The decision of the present Director, Primary Education (respondent no.3) which has been brought on record with his counter affidavit and the personal affidavit do not inspire confidence of this Court. These are the decisions taken by him in haste without seeking leave of this Court. If such decisions are allowed to exist they would be only encouraged to do all such acts which they may do to circumvent a possible order of this Court after knowing the prima-facie views. This Court is of the opinion that the decision taken by the then District Programme Officer (Establishment), Jamui which is impugned in the present writ application is the correct decision and needs to be implemented.
Ataur Rahman’s case-not applicable
43. This Court has has reasons to upheld the view of the D.P.O. (Estab.), Jamui that the appointment of the untrained teacher after 31.03.2015 was not valid because there was no further exemption granted by the Government of India from/ or N.C.T.E. minimum teaching eligibility qualification prescribed by the N.C.T.E. Thus, the question of putting the petitioner under any of the categories of the cases decided by this Court in the Ataur Rahman’s case does not arise. In the said case, this Court considered an entirely different issue. The learned coordinate Bench, in ‘Ataur Rahman’ was examining the cases of (a) trained teachers who opted training after 31.03.2019 (b) teachers who have applied for training and have already been registered with NIOS but have not completed their training on 31.03.2019 (c) those who have completed their training but not received the certificate up to 31.03.2019 and (d) those whose results have not been declared although they have completed their training up to 31.03.2019 and other categories of teachers. In the said case, no issue with regard to validity of their appointment at initial stage was under consideration and the whole discussions were around the provision of Section 23(2) of the Right to Education Act whereunder by way of a special gesture, the Union of India granted relaxation by adding a proviso to Section 23(2) whereby further four years time were granted from 31.03.2015 to complete the training. Section 23 of the Right to Education Act (in short ‘R.T.E. Act’) is being quoted hereunder for a ready reference:-
“23. Qualifications for appointment and terms and conditions of service of teachers.—
(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years:
[Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.]
(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.”
R.T.E. Act and Regulations framed by N.C.T.E.-Discussed
44. It seems expedient at this stage to have a glance over the regulations framed by the N.C.T.E. which has got statutory flavour. In the matter of laying down the minimum qualifications for a person to be eligible as a teacher. The N.C.T.E. was made an academic authority to lay down the minimum qualification. In the year 2009, the Government of India came out with Right to Education Act, 2009. The main feature of the Act is to provide for free and compulsory education to all children of the age of six to fourteen years. The Act received President’s assent in August, 2009. The N.C.T.E. laid down minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII vide notification no.215 dated 25.08.2010 published in the Gazette of India Extraordinary Part III, Section 4. The said notification was amended vide notification dated 29th July, 2011 and again vide notification dated 12.11.2014. In this case, we are not concerned with further amendments which were brought in the year 2018 and 2019.
45. It is worth mentioning here for purpose of this case that the N.C.T.E. vide its notification dated 12.11.2014, in exercise of power conferred under Clause (dd) of sub-section (2) of Section 32 read with Section 12A of the N.C.T.E. Act, 1993 and in supersession of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulation, 2001 except as respects things done or omitted to be done before such supersession made a regulation known as National Council for Teacher Education (Determination of Minimum Qualifications for persons to be recruited as Education Teachers and Physical Education Teachers in Pre-primary, primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014. It applies to the school established, owned and controlled by the Central Government or the State Government or a local authority, a school receiving aid or grants to meet whole or part of its expenses and a school not receiving any aid or grants to meet whole or part of its expenses from the Central Government or the State Government or a local authority. Regulation ‘5’ provides for “power to relax” and reads as under:-
“5. Power to relax
Where the Council is satisfied on receipt of reference from the concerned State Government that special circumstances exist warranting relaxation of some of the provisions of the Regulations, it may grant relaxation of that provision to such extent, for such time period and subject to such conditions and limitations as it may consider necessary, in a just and equitable manner;
Provided, that no relaxation, shall be granted under these Regulations with regard to the minimum qualifications for appointment of teachers for Level 3 (Class I to VIII) as specified in the First Schedule.”
46. From the provisions of the R.T.E. Act and the Regulations framed by N.C.T.E., it becomes clear that on the date the earlier exemption was going to expire, the Regulation of 2014 had already come into force and the power to relax was vested with the N.C.T.E. but there was no relaxation to be provided with regard to the minimum qualifications for appointment of teachers for level 3 (class I to VIII). Thus, after 31.03.2015, there was no scope for appointment of untrained teachers. Paragraph ‘17’ of the counter affidavit of R-3 as noticed in paragraph ‘34’ hereinabove is nothing but an attempt to mislead this Court.
47. In view of the discussions made hereinabove, this Court is of the considered opinion that the findings recorded by the District Programme Officer (Establishment), Jamui in his order are well reasoned. The consequential order which has been issued is in accordance with the order of the D.P.O. (Estab.), Jamui. Since the petitioner does not have requisite qualification to be appointed as teacher after 31.03.2015, his case would be fully covered by the ratio of the judgment of the Hon’ble Supreme Court in the case of Mohd. Sartaj and Anr. Vs. State of U.P. & Ors. reported in (2006) 2 SCC 315. In the said case, the appellants were not qualified and they did not possess the B.T.C. or Hindustani teacher certificate or junior teacher certificate or certificate of teaching or certificate of any other training course recognized by the State Government as equivalent thereof at the time of their initial appointment. In view of basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. In that view of the matter, it was held that no prejudice has been caused to the appellants by not serving notice of giving hearing before the order of cancellation was issued.
48. In the present case, the fact is that the impugned office order has been passed in the light of the direction of this Court to enquire into the matter and if it is found that appointment of the petitioner is legal and valid then he was to be paid his salary. Thus, the legality and validity of the appointment of the petitioner was being examined by the D.P.O. (Estab.) by virtue of a direction of this Court and in the process he has considered the representation of the petitioner and the records of the employment unit. Thus there was no need to give a second hearing for purpose of issuance of the consequential order cancelling his appointment.
49. The impugned orders cannot be interfered with.
50. At this stage, this Court having held that the action of the present Director, Primary Education (respondent no.3) in coming up with memo no. 1052 dated 30.07.2023 and memo no.1464 dated 26.08.2023 were out of an effort on his part to circumvent the order of this Court, this Court directs that those orders shall not be given effect to and in case any money has been disbursed to the petitioner by virtue of the said order, either the same will be recovered from him immediately, or the amount shall be liable to be recovered from the erring officials including the respondent no.3 in accordance with law. In future, the respondent no.3 shall be cautious while dealing with the Court’s matters and would not repeat the similar kind of wrong which he has done in the present case.
51. The F.I.R. already lodged vide Chakai P.S. Case No. 252/2023 and the memo of charges served upon the then Block Education Officer(s), Chakai as informed to this Court, shall be given their logical end.
52. In view of the above, let this judgment be communicated to the Additional Chief Secretary, Department of Education, Government of Bihar to take consequential actions with regard to the illegal appointments of untrained teachers at primary level after 31.03.2015, if any, however, any such action shall be taken only by following the principles of natural justice and established procedure of law within a stipulated period as may be fixed by him.
53. This writ application as well as I.A. are disposed of accordingly.
