Binod Kumar Yadav @ Vinod Kumar Yadav vs Shailesh Kumar And Ors

Learned counsel for the appellant has submitted that defect No.2 and 3 may be ignored.

Accordingly, defect No.2 and 3 are hereby ignored for the present.

Learned counsel for the appellant has submitted that so far defect no.8 is concerned, the same is with regard to filing of authentication fee to the

tune of Rs.10/-, but that has already been filed, as such, defect may be ignored.

Office is directed to verify.

Heard, learned counsel for the parties.

Learned counsel for the appellant has submitted that respondent no.1, Shailesh Kumar has preferred an application before Jharkhand Education

Tribunal, Ranchi vide JET Case No.26 of 2018 on 14.08.2018 without impleading appellant as party respondents for following relief(s):-

(i) For issuance of appropriate order(s)/direction(s) to the respondent no.3 for appointment of Principal of Upendra Nath Verma Inter College, Chatra.

(ii) For putting under suspension the Principal, Mr. Sanjay Kumar, S/o Ram Dev Singh of Upendra Nath Verma Inter College, Chatra.

Learned counsel for the appellant has submitted that private respondent has filed an application before the learned Tribunal for direction for

appointment of regular Principal of Upendra Nath Verma Inter College, Chatra as the Principal in-charge, Sanjay Kumar was sent to jail for

defalcation while working as the in-charge Principal of Upendra Nath Verma Inter College, Chatra and at that time Mr. Shailesh Kumar was working

as a Vice-Principal of the said college. The management committee as per the provision of Jharkhand Academic Council was officiating through

District Education Officer, Chatra as Secretary of the college till regular Secretary is nominated by the Donors.

Learned counsel for the appellant has further submitted the District Education Officer, Chatra has filed counter-affidavit stating therein that one

Binod Kumar Yadav @ Vinod Kumar Yadav is working as a Principal In-charge of the Inter College vide order No.1092 dated 20.11.2018

Annexure-C/1 to the counter-affidavit filed before the learned Tribunal but no amendment petition has been filed by the petitioner (Shailesh Kumar-

Respondent No.1 herein) before the JET nor the JET has impleaded Binod Kumar Yadav @ Vinod Kumar Yadav as a party rather without framing

any issue learned Tribunal decided the same in para 11 of impugned order holding that respondents have arbitrarily made the junior most teacher from

the seniority list as the Principal in-charge illegally, as such, order No.1092 dated 20.11.2018 (Annexure-C/1) by which Binod Kumar Yadav @ Vinod

Kumar Yadav lecturer of Maths has been appointed in-charge Principal is set aside and the respondents are directed to appoint in-charge Principal

based on seniority list.

Learned counsel for the appellant has further submitted that Jharkhand Academic Council has filed counter-affidavit in the present case and as per

the counter-affidavit the eligibility for appointment of Principal has been mentioned in letter dated 28.03.2009 issued by the Joint Secretary,,

Department of Human Resource Development (Secondary Education Directorate), Government of Jharkhand addressed to the Secretary, Jharkhand

Academic Council, Ranchi where it has been mentioned that for the post of the Principal:- (i) the qualification requires is degree of post-graduation

from recognized University in IInd Class and as per the rule framed (ii) working experience in a degree college for seven years or teaching

experience of twelve years in any recognized +2 school or Inter College.

Learned counsel for the appellant has further submitted that the relief which was sought for by the applicant before the learned Tribunal was

beyond the scope of the case, as such, the order may be set aside as the same has been passed as ex-parte against the appellant without following the

Principles of natural justice and also Section 11 of the Jharkhand Education Tribunal Act, 2005.

Learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Bombay High Court in the case of Vaijanath vs. Secdretary,

M.S.P. Mandal, reported in 2006 (6) Mh.L.J. 682, para 12, which is profitably quoted herein:-

To us, it does appear that had the attention of the rule makers been drawn to Rule 3(1)(a)(i) and (ii) and more particularly, in regard to the

absence of the word 'trained' in Rule 3(1)(a)(ii), they would have filled in the omission by inserting the word 'trained' in Rule 3(1)(a)(ii). As we are

convinced that absence of word 'trained' in Rule 3(1)(a)(ii) is an unintended accidental omission, the same has to be supplemented by having recourse

to the rule of construction, as stated by Denning, L.J., which has been approved by the majority judgment of the Apex Court viz. seven Judges

judgment rendered in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors.(supra). Failure to have recourse to the same, would

result in destroying the whole fabric of the scheme laid down by the Act and the other provisions of the Rules. In this view of the matter, we deem it

appropriate to read the word 'trained' in Rule 3(1)(a)(ii) after the word 'senior most' and before the word 'teacher' so that a harmonious construction

of the Act and the other provisions of the Rules is possible. Accordingly, we supplement the word 'trained' in Rule 3(1)(a)(ii) and answer the

reference herein below thus:

For appointment to the post of Head Master (by promotion) of a primary school, the seniority of the teacher is to be counted from the date he acquires

educational and training qualifications as prescribed under Schedule 'B' of the M.E.P.S. Rules. The seniority cannot be counted from the date of initial

appointment and continuous affiliation devoid of requisite qualification as prescribed in Schedule 'B'.

Learned counsel for the appellant has also relied upon the judgment passed by the Hon'ble Apex Court in the case of Union Public Service

Commission and Another vs. Naseer-Ud-din Wani and Others, reported in (2011) 14 SCC 142 where the Apex Court has dealt with the issue with

regard to relief which cannot be granted far beyond the scope of justified judicial interference and in the present case, the relief which has been

sought by the petitioner for appointment of the regular Principal which has already been made on 20.11.2018 by appointing Binod Kumar Yadav @

Vinod Kumar Yadav as In-charge Principal, but even then the learned Tribunal without giving an opportunity of hearing to the appellant, Vinod Kumar

Yadav, has passed an order against the appellant, as such, the same may be set aside.

Learned counsel appearing for the contesting respondent no.1- Sailesh Kumar has submitted that the learned Tribunal has taken all sorts of

precaution while allowing the application and has adjudicated the contention of both the claimants i.e. Sailesh Kumar and Vinod Kumar Yadav at para

10 of the impugned order and by holding at para 11 that respondents have arbitrarily made the junior most teacher from seniority list as the Principal

in-charge illegally, as such, Order No.1092 dated 20.11.2018 by which Vinod Kumar Yadav, lecturer of Maths, has been appointed as in-charge

Principal is set aside and the respondents are directed to appoint In-charge, Principal based on seniority list.

Learned counsel for the respondent no.1 has submitted that since the adjudication has been made though in absence of appellant, Vinod Kumar

Yadav but nothing will be changed because the learned Tribunal had adjudicated the issue.

Learned counsel for the private respondent no.1 has further submitted that there is a legal remedy under the law for the appellant to file an

application for review before the learned Tribunal, as such, the appeal is not maintainable and may be dismissed.

Learned counsel for the appellant has submitted that while adjudicating the issue in absence of the appellant the learned Tribunal has considered

the seniority list to be guiding factor for appointment of Principal which is contrary to the rule framed by Government, which has been communicated

to JAC (Jharkhand Academic Council) by the Joint Secretary, Government of Jharkhand which has been brought on record as Annexure-C in the

affidavit filed by the Jharkhand Academic Council before this Court.

Learned counsel for the respondent no.3 has submitted that counter-affidavit has been filed by the Jharkhand Academic Council bringing on

record, the documents which have been made part of the counter-affidavit as Annexures-A, B and C, as such, the governing body has to decide the

issue in accordance with the law.

Learned counsel for the State has submitted that the District Education Officer is working as a Secretary till the regular bodies is constituted and

the appointment has to be made by the Donor of the College.

After hearing the learned counsel for the parties and looking into the facts and circumstances of the case, it appears that the basic grievance of

the appellant is that an order has been passed ex-parte against him without impleading him party in the proceeding. The contesting respondent has also

submitted that review is maintainable and is the legal recourse available before the appellant even if the appellant has not been heard, as such, this

Court set aside the impugned judgment and remit the matter to the learned Jharkhand Education Tribunal directing the learned Tribunal to adjudicate

the issue by 28.02.2021 afresh.

Parties are liberty to file their document by 31.12.2020.

Appellant shall appear before the learned Tribunal by 31.12.2020 and the respondent- Shailesh Kumar shall implead Vinod Kumar Yadav as

respondent in the original case before the Jharkhand Education Tribunal.

The Counsel for the Jharkhand Academic Council as well as the State counsel appearing for the District Education Officer shall also bring the

documents before the JET. Since the matter has to be adjudicated afresh and the period has been framed till 28.02.2021, it would be proper for this

Court after setting aside the judgment that neither Shailesh Kumar nor Vinod Kumar Yadav shall work as a In-charge-Principal during that period.

The District Education Officer, who is working as a Secretary till the regular appointment is made shall function as an ad-hoc arrangement but he

shall not take any policy decision in the matter. He shall only discharge day to day function of the College.

Parties have assured this Court that they shall appear before the learned Tribunal by 31.12.2020.

It is expected from the learned Tribunal to hear the matter day to day and decide the issue expeditiously as possible.

However, parties shall co-operate and the learned Tribunal must dispose of the appeal by 28.02.2021, if there is no legal impediment for the

Tribunal.

Accordingly, the instant appeal is disposed of.

However, it is made clear that, this Court has not expressed any opinion on the merit of the case which shall be decided by the learned Tribunal on

its merits and on the basis of the facts and materials available before them.

I.A. Nos.4522/2020 and 5563/2020 are hereby closed.