2025:JHHC:28170 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 280 of 2017 --- 1. Jharkhand Intermediate Shikshak Shikshektar Karmchari Mahasang, through its President Sri Chandreshwar Pathak, having office at B-II/918, Sector-II, HEC colony, Dhurwa, P.O. Dhurwa, P.S.- Jagannathpur, Town and District- Ranchi. 2. Ashok Kumar Singh, son of Late Dil Mohan Singh, resident of Mohalla- Wakna, P.O.- Nepura, P.S.-Godda (M), District Godda. ...Petitioners Versus 1. The State of Jharkhand through the Secretary/Principal Secretary, School Education and Literacy Department, Government of Jharkhand, having office at MDI Building, near Project Building, P.O. & P.S.- Dhurwa, Town and District- Ranchi. 2. The Director (Secondary Education), School Education and Literacy Department, Government of Jharkhand, having office at Secondary Education Directorate, MDI Building, P.O. & P.S.- Dhurwa, Town and District- Ranchi. 3. Jharkhand Academic Council, through its Chairman, having office at Gyandeep Campus, Bargawan, P.O. & P.S.- Namkum, Town and District- Ranchi. 4. The Secretary, Jharkhand Academic Council, having office at Gyandeep Campus, Bargawan, P.O. & P.S.- Namkum, Town and District- Ranchi. ...Respondents -- CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN -- For the Petitioners : M/s. Manoj Tandon, Neha Bhardwaj, Shivani Bhardwaj, Karamjit S. Chhabra, Advocates For the Resp.-State : Mr. Rahul Saboo, G.P.-II Mr. Rishabh Kaushal, A.C to G.P.-II Mr. Kunal Chandra Suman, A.C to G.P.-II For the Resp. No.4.-J.A.C: Mrs. Richa Sanchita, Advocate -- 15/02.09.2025 Heard learned counsel for the parties. 2. The instant writ application has been preferred by the Petitioners for the following reliefs: (i) To quash and set aside the decision contained in Memo No. 7/Vi.7-35/2015 1736 dated 07.09.2016 issued under the pen and signature of the Director (Secondary Education), Jharkhand, Ranchi (respondent 2025:JHHC:28170 2 no.2), whereby and whereunder the Secretary, Jharkhand Academic Council, Ranchi (respondent no.4) has been directed (giving reference to Letter no. 531 dated 9.3.2016 and Letter no. 761 dated 7.4.2016) not to distribute the grant-in-aid to those teaching/non teaching staff, who have crossed the age of 60 years of their age. (ii) Also to quash and set aside the Communiqué No. 64/2016 dated 6.10.2016 issued under the pen and signature of Secretary, Jharkhand Academic Council (respondent no.4), whereby and whereunder, giving reference to the said letter dated 7.9.2016 issued by the Director (Secondary Education), Jharkhand, Ranchi, a decision has been taken that the grant-in-aid be not distributed to those teaching/non-teaching staff, who have crossed 60 years of their age. (iii) During the pendency of this writ petition, operation of the Communiqué No. 64/2016 dated 6.10.2016 (Annexure-6) and the decision contained in Memo No. 7/Vi.7-35/2015 1736 dated 07.09.2016 (Annexure-5) may kindly be stayed. 3. The brief facts of the case as it appears from the writ application are that Jharkhand Academic Council Act, 2002 was enacted by the State Legislature. Thereafter, the Jharkhand Intermediate College Establishment Permission and Recognition (Terms and Conditions) Rules, 2005 was framed. Consequently, the Director (Secondary Education), Jharkhand issued a letter as contained dated 09.03.2016 in respect of Kishan High School, Pithoria, Kanke directing that grant-in-aid should not be distributed to those teaching/non-teaching staff, who have crossed the age of 60 years. Another similar letter contained in Memo no. 761 dated 07.04.2016 was issued by the Director (Secondary Education), Jharkhand, in respect of Basia Intermediate College, Basia, Gumla with the same direction. On being requested for guidelines for issuance of such aforesaid letters, the Director, issued the impugned letter 07.09.2016, whereby, Secretary, Jharkhand Academic Council was directed that the 2025:JHHC:28170 3 aforesaid decision dated 9.3.2016 and letter no. 761 dated 7.4.2016 may be treated as a decision of the Government under section 9(4) of the Act, 2002 and same be followed in other similar matters. The said decision of the Director (Secondary Education), led to issuance of Communiqué No. 64/2016 by the Secretary, Jharkhand Academic Council, Ranchi, whereby, a general notice has been issued that grant-in- aid be not distributed to those teaching/non-teaching staff, who have crossed the age 60 years. Being aggrieved, the Petitioners have preferred the present writ application. 4. Mr. Manoj Tandon, learned counsel appearing for the Petitioners has challenged the impugned order by contending that the same has been issued by the Director, Secondary Education, Jharkhand, Ranchi in the light of Section 9(4) of Jharkhand Academic Council Act, 2002, wherein it has been specifically stipulated in Section 9(4) that any decision with regard to service condition is to be taken by the State Government and as per Article 166 of the Constitution of India, it clearly stipulates that all executive action of the Government of State shall be expressed to be taken in the name of Governor. 5. The main thrust of argument of the petitioner is that since the Director, Secondary Education, Jharkhand cannot be treated as State himself; rather it might be an internal communication and if at all it is an internal communication; then, Jharkhand Academic Council could not have issued another impugned order, whereby the Academic Council has issued a notification indicating the implementation of the said order. 6. Learned counsel for the petitioners confines his argument on the sole issue as to whether the 2025:JHHC:28170 4 impugned decision dated 07.09.2016 is unconstitutional as the Director, Secondary Education, Jharkhand has no power and jurisdiction to issue general or special direction to the Jharkhand Academic Council in terms of Section 9(4) of Jharkhand Academic Council Act. He contended that the decision contained in Letter no. 1736 dated 07.09.2016 cannot be construed as a decision of the State of Jharkhand and therefore, the notification (Annexure-6 to the writ application) issued by the Jharkhand Academic Council has no meaning and as such, both these impugned decision i.e., letter dated 07.09.2016 issued by the Director, Secondary Education, Jharkhand and the notification issued by Jharkhand Academic Council annexed as Annexures: 5 & 6 respectively to this writ petition be quashed and set aside. 7. In support of his contention, he relies upon the judgment passed by Hon’ble Apex Court in the case of Yadaiah and another vs. State of Telangana and other1 at para-62, wherein the Hon’ble Apex Court has clearly held that “.............. the order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 and then it has to be communicated ..........” He lastly submits that in view of the admitted position that the impugned decision of the Director, Secondary Education which has been communicated by the Academic Council is non-est in the eyes of law; as such, the same may be quashed and set aside. 8. Learned counsel for the State relies upon its counter affidavit, especially supplementary counter affidavit dated 01.09.2025, wherein at paras-5, 6 & 7, it has been stated as under: 1 (2023) 10 SCC 755 2025:JHHC:28170 5 “5. That it is most humbly and respectfully submitted that, vide Departmental Notification No. 1902 dated 11.07.2008, the Jharkhand Secondary School Establishment Permission and Recognition (Conditions and Restrictions) Rules, 2008 were duly notified, and that under Clause 9(c) of the aforesaid Rules, relating to service conditions, it has been specifically provided that, "Every school shall prepare a service conditions manual in the light of the provisions of service conditions for teachers/non-teaching staff in the light of the constitution mentioned by the school's governing body/trust, society and the relevant rules and provisions of the State Government, which shall be based on the principles of natural justice and the prevailing law. It shall be necessary to get formal approval of this manual from the Jharkhand Academic Council." 6. That it is most humbly and respectfully submitted that Clause 11 of the aforesaid Notification provides that "At the time of applying for approval, an affidavit should be attached to the effect that the school will make any claim for acquisition/nationalization in the future. Nor will the state government be responsible for paying the salaries of teachers (including the headmaster) and other employees working in the school. The school management will be fully responsible for this". That further, Clause 13(ii) of the said Notification states that "any clarification or executive order issued by the State Government by way of notification shall be deemed to form part of these Rules." 7. That it is further submitted that, vide Departmental Notification No. 705 dated 28.12.2005, the Jharkhand Intermediate College Establishment Permission and Recognition (Conditions and Restrictions) Rules, 2005 were notified That Clause 7(4) of the said Rules provides that “the required qualifications and other service conditions for non- teaching employees shall be as prescribed by the council with the approval of the State Government.” That further, as per Clause 18 of the said Notification, any clarification issued by the State Government for the interpretation of the provisions of these Rules shall be deemed to be a part of these Rules. That it is further stated that these Rules were notified after approval of the Council of Ministers.” 9. Mr. Rahul Saboo, Ld. Counsel for the State while opposing the contention of the Petitioners submits that in the year 2008 notification, as per Jharkhand Intermediate College Establishment Permission and Recognition (Conditions and Restrictions) Rules, 2005 it has been provided that that every school shall prepare a service conditions manual in the light of the provisions of service condition for teachers/non-teaching staff in the light of the constitution mentioned by the school's governing body. 2025:JHHC:28170 6 However, Mr. Saboo after verification of original records which was called for by this Court could not point out that there is any permission of the Governor/Cabinet for issuance of this letter. He fairly submits that no such document is there in order to demonstrate that there was approval of Cabinet. However, he relies upon a judgment passed by Hon’ble Apex Court in Civil Appeal No. 2837 of 2022, wherein the Hon’ble Apex Court with regard to grant-in- aid has held at paras 10,11 & 12 as under: “10. In a case involving similar issue as to whether a minority institute receiving an aid is bound by the conditions imposed by the Government, this Court in a recent decision in case of State of Uttar Pradesh and Others vs. Principal Abhay Nandan Inter College and Others² observed as under: - 32. When it comes to aided institutions, there cannot be any difference between a minority and non-minority one. Article 30 of the Constitution of India is subject to its own restrictions being reasonable. A protection cannot be expanded into a better right than one which a non-minority institution enjoys. Law has become quite settled on this issue and therefore does not require any elaboration. 33. Thus, on the aforesaid issue we have no hesitation in reiterating the principle that an institution receiving aid is bound by the conditions imposed and therefore expected to comply. Once we hold so, the challenge made on various grounds, falls to the ground." 11. In light of the afore-stated legal position, we are of the opinion that the respondent-institution was bound by the provisions contained in the Grant-in-Aid Code. There is also nothing on record to show that the appellant-State had discriminated against the respondent-institution on the ground that it was under the management of a minority, attracting Article 30(2) of the Constitution of India. The High Court therefore had committed gross error in holding that the respondent-institute had a right to continue the Principal of its school beyond his age of 60 years, and in directing the appellants to calculate and pay the requisite amount towards the arrears of grant for the period from 2001 to 2012. 12. In that view of the matter, the impugned order passed by the Division Bench confirming the order passed by the Single Bench allowing the writ petition filed by the respondent institution is set aside. The present appeal filed by the appellants stands allowed accordingly.” 10. Mrs. Richa Sanchita, learned counsel for the Academic Council submits that much hue and cry has been made about this letter but if one goes through the subject, it is entirely differently. She further contended that in view of the earlier notification of 2008 and Rules and Regulation; the Director, Secondary Education simply 2025:JHHC:28170 7 wrote a letter to the Secretary, Academic Council and this can be treated as internal communication between the two wings. She lastly submits that the said letter is only with respect to grant-in-aid to be paid to the individual institution and it is none of the business of Academic Council, that any institute keeps any person at their own risk beyond the age of retirement and grant-in-aid has to be given only till the age of retirement of any employee of the institution. 11. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, the sole contention of Ld. Counsel for the Petitioner is that the impugned letter dated 07.09.2016 issued by the Director Secondary Education, Jharkhand, Ranchi is beyond jurisdiction and is in contradiction to Section 9(4) of Jharkhand Academic Council Act, 2002. Mr. Manoj Tandon has relied upon Article 166 of the Constitution of India in support of his sole contention. For brevity, Section 9(4) of the Jharkhand Academic Council Act and Article 166 of the constitution is quoted hereinbelow: “9(4) उ -1(1) (3) य- य य औ उ ।“ 166. Conduct of business of the Government of a State—(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among 2025:JHHC:28170 8 Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. 12. After going through the specific provision enshrined under Section 9(4) of the Jharkhand Academic Council Act coupled with the stipulation made in Article 166 of the Constitution of India, this Court is having no hesitation in holding that in view of Section 9(4) of the Act, any order with regard to service condition is to be issued in the name of the Governor. As a matter of fact, in the case of Yadaih (supra) the Hon’ble Apex Court has categorically held at Para 62 as under: “62. Similarly, the decision of this Court in Bachhittar Singh v. State of Punjab which is cited in the above reproduced paragraph notes: "9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister. 13. Now coming to the impugned annexure-5, which is extracted hereunder: i=kad&7@fo07&35@2015@736@ >kj[k.M ljdkj Ldwyh f’k{kk ,oa lk{kjrk foHkkx Ek/;fed f”k{kk funs”kky; izs’kd] funs”kd ¼ek/;fed f”k{kk½ >kj[k.M] jkaphA lsok esa] lfpo] >kj[k.M vf/kfo?k ifj’kn jkaphA 2025:JHHC:28170 9 jkaph] fnuakd 07-09-2016 fo’k;&LFkk;h izLohd`r baVj egkfo/kky;@LFkkiuk vuqefr izkIr ,oa izLohd`r ek/;fed fo/kky;ksa esa 60 o’kZ dh vk;q iwjh djus ds mijkar Hkh f”k{kd@f”{kdksÙkj deZpkfj;ksa ds dk;Zjr jgus ,oa ljdkjh vuqnku izkIr djus ds laca/k esaA izlax& vkids i=kad&2185] fnuakd 11-06-2016 egk”k;] mi;qZä fo’k;d izlaxk/khu i= dk lanHkZ fd;k tk;A mDr }kjk >kj[kaM jkT;kUrxZr foHkkx }kjk vuqnkfur LFkk;h izLohd`r baVj egkfo/kky;@LFkkiuk vuqefr izkIr ,oa Lohd`r ek/;fed fo/kky; esa 60 o’kZ dh vk;q iwjh djus ds mijkar Hkh f”k{kd@f”{kdksÙkj deZpkfj;ksa ds dk;Zjr jgus ,oa ljdkjh vuqnku izkIr djus ds laca/k esa ekxZn”kZu dh vis{kk dh xbZ gSA bl lanHkZ esa LFkkiuk vuqefr izkIr vuqnkfur fdlku mPp fo/kky; fiBkSfj;k] dkads] jkaph dks funs”kkyh; i=kad 531 fnuakd 09-03-2016 rFkk LFkk;h izLohd`r cfl;k baVj egkfo/kky;] cfl;k] xqeyk dks funs”kky;h; i=kad&761] fnuakd 07-04-2016 }kjk fn”kk&funsZ”k fuxZr gSA vr% >kj[k.M vf/kfo/k ifj’kn] vf/kfu;e 2002 dh dafMdk 9¼4½ ds rgr funsf”kr djuk gS fd mijksDr fo/kky; ,oa baVj egkfo/kky; dks fuxZr fn”kk&funsZ”k ds vkyksd esa lacaf/kr ekeyksa dk fu’iknu djuk lqfuf”p fd;k tk;A fo”oklHkktu] g0@&vLi’V funs”kd ek/;fed f”k{kk >kj[k.M] jkaphA Kkikad&7@fo07&35@2015@736@ jkaph] fnuakd 07-09- 2016 izfrfyfi&v/;{k] >kj[k.M vf/kfo/k ifj’kn] jkaph dks muds i=kad 83@16] fnuakd 26-07-2016 ds izlax esa@lHkh {ks=h; f”k{kk mi funs”kd@lHkh ftyk f”k{kk inkf/kdkjh dks lwpukFkZ ,oa vko”;d dkjZokbZ gsrq izsf’krA g0@&vLi’V funs”kd ek/;fed f”k{kk >kj[k.M] jkaphA 14. After going through the impugned annexure, it clearly transpires that the subject of the letter is with regard to grant-in-aid but there was specific direction by the Director, Primary Education that in view of Section 9(4) of the Act Jharkhand Academic Council Act, 2002 the letter, in question, has been issued. The concluding part of the letter cannot be said to be sustainable in the eye of law because the Director, Primary Education cannot assume the charge of the State Government. 15. So far as the merits of the case is concerned, it is clarified that the Government is well-empowered to make any Rules and Regulations, either with regard to service condition or with regard to grant-in-aid, but in no 2025:JHHC:28170 10 way the impugned order dated 07.09.2016 can be said to be an order of the Government. Further, the judgments cited by learned counsel for the Respondents with regard to power in connection with grant-in-aid is concerned; there is no quarrel on this issue that the State is completely empowered to take its decision but again the question that comes is that no executive officer can take any such decision with regard to service condition because certainly grant-in-aid will affect the service condition of the retired/unretired employee; accordingly, it has to be taken by the State Government and not by the individual officer. 16. Having regard to the aforesaid discussion, the impugned order dated 07.09.2016 (Annexure-5) and the communication dated 06.10.2016 (Annexure-6) are hereby quashed and set aside. At the cost of repetition, the State Government may proceed in accordance with law, if so advised. 17. As a result, the instant writ application is allowed. 18. Pending I.A(s), if any, stands closed. (Deepak Roshan, J.) jk