- (1.) This Letters Patent Appeal has been preferred by the original respondent No.1 of W.P.(S) No. 1897 of 2013. The writ petition was preferred by the original petitioners-respondents herein which was allowed by the learned single Judge vide order dated 26th September, 2013. The respondents (Original petitioners) who were wrongly offered the post of teachers, are now offered the post of clerks, because these respondents had not cleared the Teachers Eligibility Test as required under the notification issued by the National Council of Teachers' Education (hereinafter referred as "N.C.T.E."under Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009. Though this minimum qualification or eligibility was not with the respondents, they were given appointment as teachers in Primary Schools on compassionate basis on account of death of their respective father / mother / husband. In fact, there is no termination of the services of the respondents by the State of Jharkhand. The respondents who were appointed on compassionate basis as teachers vide appointment letters dated 20th September, 2012 are now offered the post of clerks vide order dated 18th February, 2013 and 7th March, 2013 and the posts of teachers given to them have been withdrawn. In fact, on earlier occassion an error was committed by the State of Jharkhand by giving them appointment as teachers in violation of the provisions of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred as Act, 2009), to be read with the notification issued Under Section 23(1) thereof by N.C.T.E. and now this mistake has been rectified by the State by offering them the post of clerk which is also Class-III post, on compassionate basis. This order of offering the respondents the post of clerk instead of the posts of teacher was under challenge by original petitioners' respondents herein by way of W.P.(S) No. 1897 of 2013, which was allowed by the learned single Judge vide order dated 26 th September, 2013 and, therefore, the respondent State of Jharkhand and others have preferred this Letters Patent Appeal.
(2.) Counsel appearing on behalf of State has submitted that father/mother/husband of the respondents have expired during their services with the State of Jharkhand and, therefore, the respondents applied for appointment on compassionate basis. Counsel for the State further submitted that: Respondents can be appointed on Class-III as well as on Class-IV post ,but, as they have not cleared teachers eligibility test (hereinafter referred to as TET for the sake of brevity) they cannot be appointed to the post of teachers in view of the provisions of the Act, 2009, Section 23 thereof prescribes qualification for appointment and terms of services of teachers. This law has been enacted keeping in mind Entry No.25 of concurrent list List No.-III of 7th Schedule of the Constitution of India and as per Section 23 of the Act, 2009 Central Government has authorized N.C.T.E. who had issued a notification dated 23rd /25th of August, 2010 in exercise of the powers under sub-section (1) of Section 23 of the Act, 2009, whereby for the Primary Teachers it has been mentioned that a candidate must have minimum 50% of the marks in Senior Secondary Examination + two years diploma in education + must have passed teachers eligibility test, can be appointed as teachers. The aforesaid qualification is statutory in nature for which necessary instructions have also been issued from time to time by Principal Secretary, Human Resources Development Department, Government of Jharkhand. One of such instructions is dated 4th June, 2012 (Annexure-6 to the memo of this LPA). Similarly Central Government has also written several letters, one of which is dated 7th May, 2012 which is at Annexure-7 to the memo of this LPA. From these letters it will be more clear that unless and until the minimum qualification is achieved by a candidate, he cannot be appointed as teacher, otherwise there will be violation of the provisions of the Act, 2009. Though the respondents were not qualified to be appointed as teachers in the Primary School because they have not cleared "TET", but, they were appointed as teachers, on compassionate basis, because of the death of their father/mother/husband. These appointments as teachers have been withdrawn within a couple of months and the original petitioners have been offered the posts of clerk. Both the posts, viz. the post of teachers as well as the post of clerks are Class-III posts and thus, neither there is any loss caused to the respondents nor their services have been terminated. However, as a matter of right they cannot demand particular type of post because, they have been appointed on compassionate basis, which is an exception to the general procedure for appointment prescribed under the Article 16 of the Constitution of India. It is further submitted by counsel for the State of Jharkhand that ordinarily for getting employment in the State, one has to compete with others after Public Advertisement, but, compassionate appointment is an exception to this general rule. In fact, there is no statutory duty vested in the State of Jharkhand to offer the post of teacher to the respondents on compassionate basis. These aspects of the matter have not been properly appreciated by the learned single Judge while allowing the writ petition. In fact there is no need of further clarification by the Government that what the law is. Nonetheless for better quality of the governmental officers a Circular was issued on 13th May, 2013 which has created a problem for the State of Jharkhand and the learned single Judge has wrongly observed that the law as stated hereinabove under the Act, 2009 to be read with notification issued by NCTE dated 23rd /25th of August, 2010, in exercise of the powers under sub-section (1) of Section 23 of the Act, 2009 will be applicable on and from 13th May, 2013. In fact the law has already been declared which has been reiterated on 13th May, 2013 by the State of Jharkhand. Therefore, it is incorrect to say that the respondents were appointed prior to the aforesaid letter of the State of Jharkhand dated 13th May, 2013 and, therefore, they can be allowed to continue as teachers in a primary school, in violation of Section 23 of the Act, 2009 to be read with notification issued by NCTE dated 23rd /25th August, 2010. This aspect of the matter has not been properly appreciated by the learned single Judge and hence, the judgment and order delivered by the learned single Judge dated 26th September, 2013 in W.P.(S) No. 1897 of 2013 deserves to be quashed and set-aside. No leniency much less in breach of provisions of the Act, 2009 can be shown to anyone. Leniency beyond the law is a cruelty to others. Respondents were given appointment to the post of teachers on 20th September,2012 and this appointment has been withdrawn, no sooner wisdom has prevailed in the State, they have been offered the post of clerks vide letter dated 18th February, 2013 and 7th March, 2013 These two orders which are orders of repentants were challenged by the respondents which have been quashed and set aside by the learned single Judge without appreciating the fact that the respondents are in fact, not eligible to be appointed as teachers.
(3.) Counsel appearing for the respondents (original petitioners) submitted that no error has been committed by the learned single Judge in allowing the writ petition bearing W.P.(S) No. 1897 of 2013 preferred by these respondents. It is further submitted by the learned counsel for the respondents (original petitioners) that the respondents were appointed on 20th September, 2012 (Annexure -1 to the memo of this LPA) whereas the Circular has been issued on 13th May, 2013, no one can be appointed as teachers unless he clears Teachers' Eligibility Test. This Circular is not applicable so far as these respondents are concerned. This aspect of the matter has been properly appreciated by the learned single Judge. It is further submitted by learned counsel for the respondents (original petitioner) that looking to the appointment letters of the respondents it appears that a condition has already been attached with the same to the effect that the respondents have to clear all necessary tests and minimum qualification for appointment of teachers within a stipulated time and the respondents are capable enough to achieve this minimum qualification. It is further submitted that the provisions of the Act, 2009 cannot replace the provisions of another Central Act, namely, National Council for Teachers Education Act, 1993 (hereinafter referred to as the Act, 1993). The Teachers Eligibility Test, as per notification issued by NCTE under sub section (1) of Section 23 thereof, has never been prescribed under the Act, 1993. Thus, both the central Acts are in conflict with each other and, therefore, the objects and reasons of both the Acts seem to be very close. The Act, 2009 has been enacted in pursuance of Article 21(A) of the Constitution of India because, it is a constitutional right vested in the children of the age group of 6 to 14 years, to get free and compulsory education. In fact, the Act, 2009 has nothing to do with prescription of the minimum qualification/eligibility and for the purpose of qualification and eligibility of the teachers, one more Act has already occupied the field which is the Act, 1993 under which there is no such requirement of clearance of Teachers Eligibility Test. Nonetheless, as stated hereinabove in the appointment letters of the respondents there is a condition that the respondents shall clear all necessary examinations. These aspects of the matter have been properly appreciated by the learned single Judge, while allowing the writ petition preferred by the respondents and, therefore, this Letters Patent Appeal may not be entertained by this Court. Learned counsel for the respondents has further submitted that looking to Section 39 of the Act, 2009 there is a power with the State authorities for removal of the difficulties. In the facts of the present case these respondents who have been appointed on compassionate basis may be allowed to continue as teachers, on a condition that they shall achieve the minimum qualification/eligibility within the stipulated time because, appointment on compassionate basis is an exception to Article 16 of the Constitution of India. Learned counsel for the respondents has also relied upon a judgment rendered by the Hon'ble Supreme Court in a case of Auditor General of India and others v. G. Ananta Rajeswara Rao, 1994 AIR(SC) 1521 and also in the case of Director of Education (Secondary) and another v. Pushpendra Kumar and others, 1998 AIR(SC) 2230 On the basis of aforesaid two decisions it is submitted by learned counsel for the respondents that the qualification/eligibility can be waived/relaxed in favour of the respondents. These aspects of the matter have been properly appreciated by the learned single Judge hence, the instant Letters Patent Appeal may not be entertained by this Court. F I N D I N G S;