IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.449 of 2003 Anil Kumar Keshri, Son of Sri Arjun Lal Keshri, Resident of Mohalla Sultanpur, P.S. Danapur Cant, District Patna at present working on the post of Assistant Teacher in D.A.V. High School, Danapur, Patna. -------- Petitioner Versus 1. The State of Bihar through the Director, Secondary Education, Bihar, Patna. 2. Vidyalaya Seva Board through its Secretary, Bihar, Patna. 3. The District Education Officer, Patna. 4. The Secretary, D.A.V. High School, Danapur Cant, Patna. 5. The Headmaster, D.A.V. High School, Danapur Cantt., Patna. 6. Central Board of Secondary Education, through its Dy. Secretary (APPLN) 2/19 Sant Bihar, Dariaganj, New Delhi. -------- Respondents ----------- 5 23.07.2010 Heard Mr. B.P. Pandey, learned senior counsel for the petitioner and counsel for the State. The original prayer of the petitioner made on 9.1.2003 in this writ application reads as follows:- “1. That this is an application for issuance of an appropriate writ, order, or direction to the respondents for payment of monthly salary and arrear of salary as well to the petitioner which has been withheld since 1st April 1999 and for direction to the respondent to approve the appointment of the petitioner on the post of Assistant Teacher (Trained Graduate in History Subject) and for any other relief or reliefs as the Hon’ble Court deem fit proper and for further direction to the respondents to quash the 2 order dated 9.10.06 contained in memo no. 1272/Patna of Secretary, Bihar Karamchari Chayan Ayog Patna Annexure 10 and order dated 19.10.2006 of Secretary, D.A.V. School, Danapur Cantt, Annexure- 10A.” During pendency of this writ application, by I.A. No. 2277 of 2008 the petitioner has also assailed the communication dated 9.10.2006 of the Bihar Karamchari Chayan Ayog, Patna wherein the concurrence/approval in the appointment of the petitioner was rejected on the ground that the certificate of training of Shiksha Visaradh of the petitioner obtained from Hindi Sahitya Sammallen, Allahabad was not treated by the Education Department of Bihar to be equivalent to B.A. The petitioner in fact has also challenged the consequential order passed by the Headmaster of D.A.V. School, Danapur directing the petitioner not to mark attendance in view of the refusal of approval by the Commission. Mr. Pandey, learned senior counsel for the petitioner, would submit that the issue was kept pending by the Commission for long eighteen years and thereafter the 3 approval was refused and in that view of the matter, this Court should now direct the State Government to approve the service of the petitioner even if he is not treated to be trained as per the qualification obtained by him from Hindi Sahitya Sammelan, Allahabad. There is no dispute that for approval of service even in a minority school requires a person to be possessing minimum qualification of being Graduate trained. When the petitioner had represented to his Managing Committee of being trained on the basis of qualification of Shiksha Visaradh from Hindi Sahitya Sammellan, Allahabad, the District Education Officer had only forwarded the case of the petitioner to the Commission in terms of Section 18 of the Bihar Non Government Secondary Schools (Taking over control and Administration) Act, 1981. The Commission, thereafter, may have delayed in giving approval to the service of the petitioner but then such approval being condition precedent for payment of salary even to a Teacher of minority aided school, 4 the same cannot be faulted only on the ground of delay. At the end of the day, the petitioner has to be now treated as an untrained teacher and thus not possessing the required statutory qualification for holding the post of Assistant Teacher in a High School. In that view of the matter, the order impugned in this writ application cannot be interfered especially when the decision with regard to the grant of educational certificate of Hindi Sahitya Sammellan, Allahabad has already been decided by the Division Bench of this Court in L.P.A. No. 28 of 2010, disposed of on 28.4.2010 wherein it was held that :- "26. In the opinion of this Court, the equivalence of qualification on the basis of course of studies and the examination cannot be made by this Court in exercise of power under Article 226 of the Constitution of India. Reliance in this connection may be made to the Division Bench Judgment of this Court in the case of Satyendra Singh & Ors. Vs. Sanjay Kumar & Ors. reported in 2001(1) PLJR 104 wherein this Court had held as follows:- 5 12. Prescribing qualification for a particular post by the competent authority is a policy decision. The Government frames a policy after taking into consideration the number of facts and circumstances, expert opinion andother relevant considerations. The power of judicial review in such matters is limited. The Court can interfere only when the authorities have acted arbitrarily or in violation of the statutory or constitutional provisions. The Court does not sit as an appellate forum in disguise over the policy matter. It has no power to re- frame the policy matter and in case the policy matter is found suffering from any legal infirmities as indicted above, then the same is to be struck down and the matter is sent to the authority to consider the policy matter in accordance with law laid down. If the rules have been framed prescribing the qualification for a particular post, the Court has no power to re-frame the rules or supplement the rule by adding additional 6 qualification for the simple reason that this is a function of the appointing and in the case of any legal lacuna the Court can only direct the appointing authority to consider the matter on the basis of the expert opinion and other relevant consideration. The Court cannot on the basis of the documents appended with the affidavit determine the equivalence or addition of qualification in the recruitment rules. 15. Thus, the law is settled that when the recruitment rules provide for a requisite qualification and the question arises as to whether any other qualification is equivalent to the qualification prescribed in the recruitment rules or not, then that question has to be decided by the competent authority and the Court cannot amend the rule or reframe it and the Court can only direct the concerned authority to re- examine the matter specially in a technical matter, like this, after obtaining the expert’s opinion. The Court cannot take a final decision on the basis 7 of affidavit and the opinion of the expert and decide such matter. The power of judicial review in such a matter is very limited and in case if the State Government decides the matter and the same is found to be arbitrary, mala fide then the Court will consider the same keeping in view the scope of judicial review in such matter. 18. The question involved in the case relates to filing up technical posts and as such it cannot be decided on the basis of certain documents appended with the affidavit by the Court in view of the settled law regarding the power of judicial review by the Apex Court in such matter. In that view of the matter, the learned Single Judge was not justified in deciding the question that qualification possessed by respondent no. 1 was equivalent to the qualification prescribed in the Recruitment Rules inasmuch as that amounts to amending the rules and re-framing the rules which is not permissible in law…” 8 27. At this place, it is also very significant to note here that similar question with regard to the equivalence of qualification of Hindi Sahitya Sammelan, Allahabad for the purposes of admission in nursing courses in the State of Rajasthan has been decided by the Apex Court in the case of State of Rajasthan & Ors. Vs. Lata Arun reported in 2002(6)SCC 252 wherein a Madhyama Certificate issued by Hindi Sahitya Sammelan, Allahabad in the year 1984 was pressed for the purposes of seeking admission by one Lata Arun was rejected by the Apex Court after recording the stand of the Deputy Secretary, Association of Indian Universities, New Delhi to the effect that Hindi Sahitya Sammelan, Allahabad is one of the voluntary Hindi institutions set up for promotion of Hindi and its examinations are not to be equated with the regular examinations of secondary boards/universities and only the standard of Hindi, of its examinations is accepted. The Apex Court had accordingly held Lata Arun to be disqualified for being admitted in a nursing course by recording the following reasons:- 9 “10. The points involved in the case are twofold: one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than +2 or Ist year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by the State Government or the authority vested with power under any statute. It is not for courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case the court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground: whether the 10 decision has been taken on consideration of relevant aspects of the matter; whether exercise of the power is obtained with mala fide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates. 11. This court in Delhi Pradeh Registered Medical Practitioners v. Director of Health, Delhi Admn. Services rejecting the contention that proper consideration had not been given to the standard of education imparted by the Hindi Sahitya Sammelan, Prayag and expertise acquired by the holders of the degrees awarded by the said institution, made the following observations: (SCC p. 691, para 5) “it is not necessary for this court to consider such submissions because the same remains in the realm of policy decision of other constitutional 11 functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of the Delhi High Court is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interfere by this Court is called for.” 12. In the case of Ravinder Nath (Dr) vs. State of H. P. this Court considered the question whether a diploma/degree of Vaidya Visharad or Ayurveda Ratna obtained from the Hindi Sahitya Sammelan, Allahabad, which institution was recognized for the period from 1931 to 1967 only, could be accepted as educational qualification fulfilling the eligibility conditions for promotion to the post of Ayuervedic Chikitsa Adhikari (Vaidya) under the 12 State of Himachal Pradesh. This Court held that the Second Schedule to the Indian Medicine Central Council Act, 1970 came into force in the State of Himachal Pradesh on 15.8.1971 which clearly mentioned the period for which diploma/degrees awarded by the Hindi Sahitya Sammelan were recognized. The respondents obtained qualification after this period for which there was no recognition, and they were aware of the fact, which itself disentitled them from claiming promotion. Their contention that the condition regarding degree from a recognized body is prescribed for direct recruitment only in Rule 7 of the 1974 Recruitment Rules while there is no such condition in Rule 11 which governs promotion, was rejected by this Court holding that the Recruitment Rules have to be read consistently with the 1970 Act and the 1968 Act as well as the government notification dated 21.2.1978 which recognizes diplomas/degrees awarded by the Hindi Sahitya Sammelan during the period 1931 13 to 1967only. This Court declared that the qualifications acquired by the respondents for the HSS, which were admittedly after 1967, did not entitle them to be considered from promotion to the post of Vaidya. 13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority. 14. Testing the facts of the case in hand on the touchstone of the principles, it is clear that on the date of submission of the application for joining the course the respondent did not possess the prescribed qualification of 10+2 or Ist year TDC from a recognized institution. The Madhyama Certificate from the Hindi 14 Sahitya qualification by the notification dated 28.6.1985. The respondent submitted the application for admission to the course in December 1989. In the circumstances the High Court was in error in issuing a direction to the appellants to treat the respondent as a candidate possessed of the prescribed educational qualification and to declare her result on that basis.” 28. Thus in our considered opinion, the judgment of the Apex Court in the case of Lata Arun (supra) is a complete answer in all respect that examination of Madhyama (Visharad) passed by the writ petitions from Hindi Sahitya Sammelan, Allahabad by itself cannot be treated to be equivalent of Intermediate examination as prescribed under the Rules specially when its equivalence was never recognized by the State Government of Bihar. At this stage, Mr. Pandey would submit that even if the petitioner’s service would not stand approved from the date of the order of the Commission refusing such approval, the petitioner would still be entitled for payment of salary for the work 15 done by him till 18.10.2006 when he was directed to not to work in the school. There are two aspects to this matter. The petitioner’s appointment was admittedly made in a private school recognized by way of minority institution by the State of Bihar. The State of Bihar is only bound to pay salary to such Teachers of such minority institution who do not fulfil the prescribed qualification of a trained teacher. There can be however no difficulty that if the petitioner’s salary can be paid by the private institution or its Managing Committee. They can always do so on their own and if not the petitioner can also claim the same from the institution but so far the State of Bihar is concerned, it can not be held liable to pay salary to a person who did not possess the requisite qualification at any point of time. That being so, this Court would not find any merit in this writ application and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)