IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13955 of 2010 1. Narendra Kumar S/O Sri Shivji Upadhyay R/O Moh Race Course Chakkar, P.S.Kazi Mohammadpur, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Primary School, Ambedkar Nagar, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 2. Rajeeev Kumar S/O Sri Bhagwati Sharan R/O Moh Naya Tola, Sahay Compound , P.S.Kazi Mohammadpur, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Mahesh Bhagat Middle School, Daudpur, Municipal Area, Muzaffarpur, Distt-Muzaffarpur. 3. Kumari Reeta W/O Kumod Kumar Singh R/O Moh Dinkar Nagar, Majhaulia, P.S. Muzaffarpur Sadar, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Nationalized Middle School, Sikandapur Kundal, Municipal Area , Muzaffarpur, Distt-Muzaffarpur 4. Neelam Kumari W/O Lalan Baitha R/O Moh Shakti Nagar Colony, Kanhauli Bishundutt, P.O.Ramna, P.S.Mithanpura, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Primary School , Kanhauli Math, Municipal Area, Muzaffarpur, Distt-Muzaffarpur. 5. Madhu Kumari W/O Sujeet Kumar R/O Jaiswal Compound , Kalambag Road, P.S.Kazi Mohammadpur, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Middle School, Chandwara, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 6. Pushpa Kumari W/O Hari Singh R/O Loma Niwas, Ganipur, P.S.Kazi Mohammadpur, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Middle School , Kundal, Municipal Area, Muzaffarpur, Distt-Muzaffarpur. 7. Anamika Kumari W/O Raman Kumar Pandey R/O Vill & P.O.Jalalpur, P.S. Maniyari, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Primary School, Kanhauli Math, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 8. Nisha Kumari Sinha W/O Krishna Kumar Srivastava R/O Moh Naya Tola, Sahay Compound, P.S.Kazi Mohammadpur, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Middle School, Kundal, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 9. Kumari Kanak Lata W/O Dhiraj Kumar R/O Vill & P.O. Hussaini, P.S.Dumaria Ghat, Distt-East Champaran At Motihari, Presently Posted As Municipal Teacher In Primary School, Krishna Toli, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 10. Neeta Kumari W/O Raj Kishore Sah R/O Vill Aas Nagar, P.O.& P.S.Kanti, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Primary School, Burning Ghat Girls School, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 11. Bandana Kumari D/O Rajdeo Singh R/O Vill Fatehpur, P.S. Turki, Distt-Muzaffarpur, Presently Posted As Municipal Teacher In Primary School, Akhara Ghat Bandh, Municipal Area Muzaffarpur, Distt-Muzaffarpur. Versus 1. The State of Bihar 2. The Principal Secretary , Human Resources Development Department Government Of Bihar, Patna. 3. The Director, Primary Education Government of Bihar, Patna. 2 4. The District Magistrate Muzaffarpur, Distt- Muzaffarpur. 5. The District Superintendent Of Education Muzaffarpur, Distt- Muzaffarpur. 6. The Muzaffarpur Municipal Corporation Through the Mayor. 7. The Municipal Commissioner, Muzaffarpur Municipal Corporation Muzaffarpur. 8. The Sub-Inspector Of School, Municipal Area Muzaffarpur Distt- Muzaffarpur. 9. The Headmaster , Primary School, Ambedkar Nagar, Municipal Area Muzaffarpur Null Distt-Muzaffarpur. 10. The Headmaster , Middle School Daudpur, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 11. The Headmaster , Nationalized Middle School Sikandapur Kundal, Municipal Area, Muzaffarpur, Distt-Muzaffarpur. 12. The Headmaster , Primary School Kanhauli Math, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 13. The Headmaster , Middle School Chandwara, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 14. The Headmaster Middle School Kundal, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 15. The Headmaster , Primary School Krishna Toli, Municipal Area, Muzaffarpur, Distt-Muzaffarpur. 16. The Headmaster , Primary School Burning Ghat Girls School, Municipal Area Muzaffarpur, Distt-Muzaffarpur. 17. The Headmaster , Primary School Akharaghat Bandh, Municipal Area Muzaffarpur, Distt-Muzaffarpur. ----------- For the petitioners: M/S. S B K Manglam & Anita Kumari. For the State : M/S. Mani Kant Mishra, GP 25 and Kinkar Kumar, AC to GP 25. For the Interveners: Mr. S K Ghosh, Sr. Advocate. For the Corporation : Mr. A K Thakur. ---- 03. 12 .08.2011 There are 11 petitioners in the present writ application. They all have a common grievance that the respondent authorities of the Municipal schools falling within the district of Muzaffarpur are arbitrarily not paying their salary since September, 2009. It is the claim of the petitioners that they have been in employment and working on the post. There is no justification for denying them or withholding their salary. 3 According to them, based on the advertisement issued by the Muzaffarpur Municipal Corporation for appointment of teachers in municipal schools, these petitioners came to be selected by the selection committee and recommended for appointment. Appointment letters were issued which are Annexure-1 series. Joining was also accepted as would be evident from Annexure-2 series and they started working as teachers but somewhere a long after 2009 their salary was stopped. While the writ application was pending, intervention application i.e. I.A. No. 2817 of 2011 came to be filed. Intervention has been made by yet another set of 11 persons who urge and plead that they are required to be heard in this case in view of many suppression of facts in matter of seeking relief from this Court. According to them, there is a long story behind the stoppage of payment of salary to the petitioners due to certain judicial intervention and those aspects have not been stated or brought to the notice of the Court. The Court after hearing the counsel for the interveners as well as going through the I.A. decides to allow I.A. No. 2817 of 2011. Counter affidavit has also been filed on behalf of respondent no.5 i.e. District Superintendent of Education and according to their stand, petitioners had been employed on the vacant post of Nagar Shishak in light of departmental letter No.4053 dated 8.11.2007. This vacancy was caused due to 4 termination of service of 11 Nagar Shishak when it was found that the degrees which they held were not recognized. The degree in question was the degree of Prathama granted by Hindi Sahitya Sammelan, Allahabad. It seems that those persons who were removed on the ground of holding unrecognized degree of Prathama moved the High Court in CWJC No. 6266 of 2007 where a direction for their re-employment was issued after a contempt application was filed. They are being paid salary on the post on rejoining since September, 2009 by virtue of yet another order dated 13.5.2010 passed in CWJC No. 5201 of 2010. A dichotomous situation has been created wherein on the same post there are two teachers working. District Superintendent of Education sought direction from the Director, Primary Education but since they have not been given any clear directions from the superiors, salary is not being paid to the present petitioners. According to the interveners, the degree of Prathama being held by them issued by Hindi Sahitya Sammelan, Allahabad is a recognized degree because the Department of Personnel and Administrative Reforms, Government of Bihar, had issued a notification in this regard way back in the year 1987. Based on Prathama degree petitioners had even taken admission in Women’s Primary Teachers Training College, Rambag, Muzaffarpur in the session 1990-92 and they were declared successful in the examination conducted by the Bihar 5 School Examination Board. They became applicants/claimants to the post on the basis of advertisement issued under the Bihar Nagar Nikay Prarambhik Shishak (Niyojan Avam Seva Shart), Niyamavali, 2006. The interveners were issued show cause by the respondent authorities as to why they ought not to be removed. They were heard and order of removal was passed against them, which came to be challenged in CWJC No. 6266 of 2007. When the matter was taken up on 19.12.2007, learned single Judge directed that till disposal of the writ application the posts which have become vacant on account of termination letters issued against the petitioners should not be filled. The writ was finally heard and disposed of on 26.6.2008. The learned single Judge quashed the order of termination dated 21.9.2007 and allowed the writ application. When the order in question in favour of the interveners was not implemented, a contempt application namely, MJC No. 2593 of 2008 was filed. Thereafter their joining was taken by the respondents. However, since petitioners came to be appointed earlier on 29.11.2007 in view of the vacancy caused due to removal of the interveners, interim order dated 19.12.2007 passed in their writ application therefore had no meaning. In the normal course of things, if the original appointees who are interveners here, were ordered to be reinstated on the basis of a judicial order passed by the learned single Judge and affirmed by a Division Bench in LPA No. 297 6 of 2009, then the present petitioners ought to have been removed because their selection was in a fortuitous circumstance, in the sense that their appointment was made due to vacancies caused by the removal of the intervenists. If the original appointees were re-instated the natural corollary would have been removal of the present petitioners from the post. To that extent appointment of the present petitioners was contingent and their right to hold the posts was not in absolute terms as High Court re-instated the original appointees to the post. Whatever be the circumstances or the reasons, since the decision of the learned single Judge came to be upheld right up to the Division Bench, to that extent allowing the present petitioners to continue on the post was a situation created by the respondents. In that sense, if the present petitioners were also allowed to work and there were two teachers on the same post, there are certain responsibility conferred upon the respondents to ensure that they get their salary for the period they have worked. The salary of the present petitioners after their appointment will have to be paid till they are removed and respondents in the above noted circumstance do have a right to remove the present petitioners, in view of the fact that the original appointees were ordered to be restored to their post on the order passed by the High Court. Their continuation on the post despite their selection made in the year 2007 becomes 7 untenable. The respondents would be well advised therefore to take immediate steps in this regard for removal of the present petitioners keeping in mind that they will be entitled for payment of salary for the period they had been appointed till they are allowed to work. But some significant aspect which has been brought to the notice of this Court is the developments in law in light of the decisions with regard to validity of degree issued by Hindi Sahitya Sammelan, Allahabad. There are at least two Division Bench decisions. One such order is dated 4.12.2009 passed in LPA No. 654 of 2009, a copy of which is made available to the Court by the petitioners. In this Division Bench, the issue was the validity of a Prathama degree obtained from Hindi Sahitya Sammelan, Allahabad. The Division Bench took notice of the decision rendered in CWC No. 6266 of 2007 (writ filed by interveners) and the LPA order passed in LPA No.297/2009. It was of the considered view that the above orders were passed on misreading of relevant documents and probably entire records were not made available to the Court, which led to some error in the said decision. In other words, the validity of the decision rendered in the case of the interveners was seriously doubted in LPA No. 654 of 2009. The issue came before yet another Division Bench. A decision was rendered in the case of The State of Bihar and others v. Mamta Kumari and others, 2010 (4) PLJR 318. 8 Here also the Division Bench in so many terms did hold that Prathama degree obtained from Hindi Sahitya Sammelan had no recognition in the eye of law and para 18 of the said decision is reproduced hereinbelow for ready reference: “18. In view of the aforesaid clear order of the subsequent Division Bench in the case of Surendra Prasad(supra) holding that the examination conducted by Hindi Sahitya Sammelan, Allahabad was never recognized much less treated to be equivalent by the State of Bihar, we can say with sense of certainty that qualification of Madhyama (Visharad) from the Hindi Sahitya Sammelan, Allahabad was never recognized to be equivalent to the qualification of Intermediate by the State of Bihar and if on that basis alone, the respondent writ petitioners had obtained their appointment, the same will have to be held as void ab initio, inasmuch as, it is well settled if the candidate did not possess the requisite qualification, such appointments would liable to be set aside. To that extent, reliance placed by the learned counsel for the State on the judgment of the Apex Court in the case of Dr. Ganga Prasad Verma (supra) as also Bir Singh (supra) seems to be apt and appropriate.” Attention of the Court has also been drawn to a decision of the Supreme Court which was the case of Rajasthan Pradesh Vaidya Samiti v. Union of India and others, (2010) 12 SCC 609. Since para 51 of the decision of the Hon`ble Apex Court has bearing and reflection with regard to the status of the institute from where the interveners obtained their degrees, it is 9 being quoted and reproduced below: “51. At the cost of repetition, it may be pertinent to mention here that in view of the above, we have reached to the following inescapable conclusions: (I) Hindi Sahitya Sammelan is neither a university/deemed university nor an educational board. (II) It is a society registered under the Societies Registration Act, 1860. (III) It is not an educational institution imparting education in any subject inasmuch as ayurveda or any other branch of medical field. (IV) No school/college imparting education in any subject is affiliated to it. Nor Hindi Sahitya Sammelan is affiliated to any university/board. (V) Hindi Sahitya Sammelan has got no recognition from the statutory authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the 1970 Act and further did not seek modification of Entry 105 in Schedule II to the 1970 Act. (VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has some elementary/basic education or has attended classes in ayurveda in any recognized college. (VII) After commencement of the 1970 Act, a person not possessing the qualifications prescribed in Schedules II, III and IV to the 1970 Act is not entitled to practise. (VIII) Mere inclusion of the name of a person in the State Register maintained under the State Act is not enough for making him eligible to practise. 10 (IX) The right to practise under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19(6) of the Constitution. (X) Restriction on practise without possessing the requisite qualifications prescribed in Schedules II, III and IV to the 1970 Act is not violative of Article 14 or ultra vires to any of the provisions of the State Act.” If this what Supreme Court had to say about the institution from where the interveners had obtained their degrees, coupled with the declaration of law made by the two Division Benches, then despite the interveners being ordered to be reinstated in service on the basis of the direction of the learned single Judge, affirmed in LPA, the continuance of the interveners on the post would become tenuous. For no person has a right to continue on a post based on a degree which has no recognition or value in the eye of law. In view of the above, even though the interveners were ordered to be reinstated, nothing prevents the respondents from removing them from their post now, forthwith in the circumstances that there is no validity of their degree of Prathama obtained from Hindi Sahitya Sammelan, Allahabad as per law declared both by this High Court and Apex Court. This Court is quite concerned about the quality of appointments of such teachers as their teaching will have a bearing on the future generation of students who will be the silent victims or 11 sufferers in the case. To that extent the reinstatement of the interveners does not give them absolute right to continue on the post in the above stated circumstances. Writ application, therefore, is disposed of with a clear direction that the petitioners would be paid their salary and steps will be taken for their removal as their selection was contingent to the removal of interveners but continuance of the interveners on the post on the basis of Prathama degree also cannot be allowed and they too must be removed in view of the declaration of law made by the Division Benches as well as the Apex Court. Respondent authorities are directed to take action on this count forthwith. Vacancy caused will be required to be filled up by adhering to the requirement of rules notified by the State forthwith. rkp ( Ajay Kumar Tripathi, J.)