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Judgment
It appears that instant Appeal has been filed on 05.06.2020 and defect nos. 1 to 9 as pointed out vide stamp reporting dated 15.10.2020 have not been removed.
Learned counsel for the appellant has submitted that he will remove the said defects within a period of two weeks from today.
Learned counsel for the appellant has submitted that on merit his case is that the appellant was not a party in JET Case No.26 of 2018, which was decided on 22.11.2019 by the JET.
Learned counsel for the appellant has further submitted that principles of natural justice has not been followed in this case. Learned counsel for the appellant has further submitted that even the school management has not been impleaded as a party in which the appellant was working as In-charge Principal.
Learned counsel for the appellant has further submitted that such issue has not been formulated, which has been decided by the learned JET, as such, the impugned judgment is fit to be set aside and the matter be remitted to the concerned Tribunal.
Learned counsel for the appellant has buttressed his argument on the basis of finding recorded by the learned JET, which is contrary to the rules appended as Annexure page no.18, which is as follows:-
"(ञ) शिक्षकों की योग्यता- ;पद्ध शिक्षक के पद पर नियुक्ति हेतु जिस विषय में शिक्षकों की नियुक्ति होनी है उस विषय में स्नातकोत्तर परीक्षा में कम-से-कम 45 प्रतिषत अंक एवं मान्यता प्राप्त संस्थान से प्राप्त बी॰एड॰ ;राज्य सरकार/राष्ट्रीय शिक्षक शिक्षा परिषद् द्वारा अधिमान्य द्ध की योग्यता न्यूनतम होगी। "
Learned counsel for the appellant has submitted that admittedly the appellant is possessing the B. Ed Degree since 2008, whereas respondent, Mr. Sailesh Kumar is possessing such degree from 2015 and as per the rules the person, who is possessing B. Ed. degree earlier shall be deemed to be senior than the person, who was appointed earlier to him. Learned counsel for the appellant in support of his submission has relied upon the judgment rendered in the case of Vaijanath vs. Secretary, M.S.P. Mandal, reported in (2006) 6 MHJL 682 para 12, of which is profitably quoted hereunder:-
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)(i) and (ii), they would have filled in the omission by inserting the word "trained" in Rule 3(1)(a)(i) and (ii). As we are convinced that absence of word "trained" in Rule 3(1)(a)(i) and (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 vs. A. Rajappa and others (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)(i) and (ii) after the word "seniormost" 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)(i) and (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 officiation devoid of requisite qualification as prescribed in Schedule "B".
Learned counsel for the appellant has thus, submitted that the instant appeal may be heard and the impugned judgment passed by the learned Tribunal may be set aside.
Learned counsel for the respondents has placed the impugned judgment and has submitted that though the issue was not particularly framed by the learned Tribunal, but this was bone of contention between the parties.
Learned counsel for the respondents has further submitted that a detail counter-affidavit is necessary in this case and this Court may also decide the issue even though the appellant has not been impleaded as a party because it is not a notification to be done on a permanent post rather an ad-hoc arrangement has to be done till the management is superseded and the District Education Officer is acting as a Secretary to the institution, as such, three weeks time may be granted so as to file counter-affidavit. Learned counsel for the respondent- Jharkhand Academic Council Mrs. Richa Sanchita has submitted that she will also file a counter-affidavit with regard to date of affiliation and the rules framed by the Government in this effect.
Considering the rival submissions and on the joint prayer of the parties, let the case be listed on 04.12.2020. It is expected that the appellant shall remove the defects in the meantime and party shall exchange their pleading before that date.
It has been submitted by learned counsel for the appellant that registry may be directed to place the file on filing inspection so as to comply the order passed by this Court.
Learned counsel for the respondent no.4, District Education Officer, Chatra has submitted that he will also file counter-affidavit. Let the parties may exchange their pleadings and prior to that registry is directed to place this file on inspection slip filed by the appellant so as to remove the defects.
Put up this case on 04.12.2020.