IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.12239 OF 2006. MD.HARIS, S/O LATE ABDUL JALIL, R/O VILLAGE KHARAIYA, P.O. KAHRAIYA, PS. AMAUR, DISTRICT PURNEA, DISTRICT PURNEA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, DEPARTMENT OF EDUCATION, BIHAR, PATNA. 3.THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 4.THE DISTRICT EDUCATION OFFICER, PURNEA. 5.ABDUL GHAFFAR, SECRETARY OF HIGH SCHOOL, RAUTA, DISTRICT PURNEA. 6.ABUZAR GHAFFARI, ASSISTANT TEACHER, HIGH SCHOOL RAUTA, P.O. RAUTA, P.S BAISA DISTRICT PURNEA. ………………………RESPONDENTS. ------------------- 03/ 20.12.2011 Heard counsel for the parties. Initially when this writ application was filed on 10.10.2006, the petitioner had prayed for a direction to the respondents for making him permanent Headmaster of Rauta High School, Rauta (hereinafter referred to as the School) on the basis that he was the senior most teacher of the School. During the pendency of this writ application the petitioner has filed I.A No.8799 of 2011, wherein, he has additionally sought relief for quashing the advertisement dated 01.04.2004, Interview Panel prepared dated 14.06.2004, resolution 2 of the Managing Committee dated 15.06.2004 and the appointment letter dated 21.06.2004, whereby and whereunder, the respondent no. 6, was appointed as the Headmaster of the School. Considering the fact that the relief sought in the interlocutory application is in continuation to the relief sought in the main writ application, the prayer made in the Interlocutory Application No. 8799 of 2011 for amendment of relief is hereby allowed. This Court, however, is of the firm opinion that neither the relief sought in the main writ application nor in the amendment application can be given to the petitioner for a simple reason that the appointment of teacher in the School, which is a minority declared institution, has to be made by the Managing Committee of the School and the Managing Committee of such School is not a State within the meaning of Article 12 of the constitution of India. This court therefore could have been simply disposed of this writ application holding it to be not all maintainable. 3 The difficulty, however, still would be that the Managing Committee of a minority institution has to fill the post of Headmaster as per the qualification laid down by the State Government for filling up the post of Headmaster in nationalized high School. Such appointment of course has to be made by the Managing Committee by following its own selection procedure but then its approval has to be made by the prescribed Authority under Section-18 of Bihar Non Government Secondary Schools (Prabandh and Niyantaran Grahan) Act 1981, relevant portion whereof reads as follows:- ^^18- vYila[;d ek/;fed fo|ky;ksa dh ekU;rk& ¼1½ --------------------------------- ¼2½ ---------------------------------- ¼3½ mi;qZDr mi&/kkjk ¼1½ ,oa ¼2½ ds v/khu ekU;rkizkIr vYila[;d ek/;fed fo|ky; fuEukafdr micU/kksa ds v/khu lapkfyr ,oa fu;fU=r gksaxs%& ¼d½ izR;sd vYila[;d ek/;fed fo|ky; ds fy, ,d izcU/k lfefr gksxh] tks lkslk;Vht jftLVzs'ku ,sDV] 1860 ds v/khu ,d fucfU/kr laLFkk gksxh rFkk ftlds xBu ,oa lapkyu dk ,d fyf[kr fo/kku gksxkA ¼[k½ vYila[;d ek/;fed fo|ky; dh izcU/k lfefr fo|ky; ds fy, jkT; ljdkj }kjk Lohd`r la[;k ds Hkhrj jkT; ljdkj }kjk jktdh;d`r ek/;fed fo|ky;ksa ds f'k{kdksa ds fy, fofgr vgZrk ds f'k{kdksa dh fu;qfDr bl vf/kfu;e dh /kkjk 10 ds v/khu xfBr fo|ky; lsok cksMZ ds vuqeksnu ls dj ldsxh% ijUrq bl mi&/kkjk ds v/khu fdlh f'k{kd dks fu;qfDr esa lgefr nsrs le; cksMZ dsoy bl ckr dh tkap djsxh fd izLrkfor fu;qfDr jkT; ljdkj }kjk fu/kkZfjr ;ksX;rk ,oa bl iz;kstukFkZ cuk;h x;h fu;ekoyh esa fu/kkZfjr izfdz;k ds vuq:i gS ;k ugha vkSj fdlh vU; ckr esa iM+us vFkok izLrko ds vkSfpR; ij mudks fopkj djus dk vf/kdkj ugha gksxkA ¼x½ vYila[;d ek/;fed fo|ky;ksa ds f'k{kdksa ,oa f'k{kdsRrj deZpkfj;ksa dh uSlfxZd U;k; ,oa izpfyr dkuwu ij vk/kkfjr ,d lsok 'krZ fu;ekoyh gksxh ftlesa vU; ckrksa ds vykok O;fFkr f'k{kd vFkok f'k{kdsRrj deZpkjh }kjk 4 izcU/k lfefr ds fu.kZ; ds fo:n~/k vihy djus rFkk mlds ekeys ij iqufoZyksdu djus dk izko/kku gh jgsxk ftldh izfr jkT; ljdkj dks Hksth tk;sxhA ¼?k½ fo|ky; lsok cksMZ ds vuqeksnu ls izcU/k lfefr fo|ky; ds f'k{kdksa dks gVk ldsxh] mudh lsok lekIr dj ldsxh] mUgsa c[kkZLr dj ldsxh vFkok mUgsa inP;wr dj ldsxh% ijUrq izcU/k lfefr }kjk fdlh f'k{kd ds fo:n~/k dh x;h vuq'kklfud dkjZokbZ dk vuqeksnu djrs le; cksMZ dsoy bl ckr dh tkap dj ldsxk fd naM dh ek=k fu/kkZfjr djus ds iwoZ mDr iz;ksUkkFkZ cukbZ x;h fu;ekoyh vkSj izfdz;k dk lE;d~ :i ls ikyu gqvk gS ;k ugha] vkSj cksMZ] ;FkkfLFkfr bl lEcU/k esa fdlh vU; ckr esa ugha iM+sxkA ¼M-½ 'kkjhfjd ,oa ekufld :i ls v{ke O;fDr dh fu;qfDr f'k{kd ;k f'k{kdsRrj deZpkjh ds :i esa ugh adh tk;sxhA ¼p½ 58 o"kZ ls vf/kd vk;q okys fdlh f'k{kd ;k f'k{kdsRrj deZpkjh dh fu;qfDr djus vFkok mls fo|ky; dh lsok esa cuk;s j[kus dh fLFkfr esa ,sls f'k{kd ;k f'k{kdsRrj deZpkjh ds osru vkfn ds Hkqxrku ds fy, dksbZ vuqnku ns; ugha gksxkA ¼N½ vYila[;d ek/;fed fo|ky;ksa }kjk Nk=ksa ls os gh 'kqYd fy, tk;saxs tks jkT; ljdkj }kjk fofgr gSA fofgr 'kqYd ls vf/kd jkf'k ysus ds fy, jkT; ljdkj dk iwokZuqeksnu vko';d gksxkA ¼t½ fo|ky; f'k{kk foHkkx ds izkf/kd`r fujh{kh inkf/kdkfj;ksa] vlSfud inkf/kdkfj;ksa ,oa LokLF; foHkkx ds izkf/kd`r inkf/kdkfj;ksa }kjk fujh{k.k ds fy, fdlh Hkh dk;Z ds fnu [kqyk jgsxkA ¼>½ Nk=ksa dk ukekadu ,oa LFkkukUrj.k] vuq'kklu ,oa naM vfHkys[kksa ,oa ys[kkikyu] 'kS{kf.kd ,oa lg&'kS{kf.kd dk;ksZa LokLF; ,oa lQkbZ vkfn ds lEcU/k esa jkT; ljdkj }kjk cuk, x, fu;eksa vFkok fn;s x;s vkns'kksa dk ikyu djuk mudk dRrZO; gksxkA ¼¥½ vYila[;d ek/;fed fo|ky;ksa ds lqlapkyu ,oa f'k{kk ds LrjksUu;u ds fy, jkT; ljdkj ,slk dksbZ funs'k ns ldsxh tks lafo/kku ds vuqPNsn 29 ,oa 30 ds micU/kksa ds izfrdwy u gks vkSj ,sls funs'kksa dk vuqikyu djuk ekU;rk izkIr vYila[;d fo|ky;ksa dk nkf;Ro gksxkA ¼V½ vf/kfu;e dh bl /kkjk ds micU/kksa vkSj blds v/khu cuk;s x;s fu;eksa rFkk fuxZr funs'kksa ds mYya?ku dh fLFkfr esa fo|ky; dh ekU;rk okil ysus vFkok fo|ky; dks feyus okys vuqnku dks jksd j[kus vFkok lekIr djus ls O;fFkr izcU/k lfefr vknsk dh rkjh[k ls 60 fnuksa ds Hkhrj jkT; ljdkj }kjk izkf/kd`r inkf/kdkjh ds le{k lquokbZ ds fy, vkosnu ns ldsxh vkSj izkf/kd`r inkf/kdkjh ekeys dh lquokbZ dj viuk fu.kZ; nsxk vkSj og fu.kZ; cU/kudkjh gksxkA** From the reading of the aforementioned statutory provision, it would be clear that the appointment of 5 teachers/Headmasters in the minority institution has to be made by the Managing Committee and the limited power vested in the State Government is to find out as to whether the persons who are appointed on the post of teacher/Headmaster in the minority institution do possess the requisite qualification. Admittedly, the power of Vidyalaya Sewa Board now has been taken away by an amendment in the Act and the Director of Secondary Education has been vested with the power, which was earlier given to the Vidyalaya Sewa Board. In that view of the matter even if an appointment of respondent no. 6 on the post of Headmaster has been allegedly made by the Managing Committee of the School, its approval is still awaiting by the Director of Secondary Education. This Court in fact has not been able to appreciate as to under what circumstances the Director of Secondary Education has referred the matter to the Bihar Public Service Commission which at no point of time has been vested with any power of approving the service of Headmaster of a minority institution. 6 Consequently, this Court must quash the letter of the Director of Secondary Education dated 5th of May, 2006 as contained in Annexure-D to the counter affidavit filed by respondent no. 5. It would therefore, now be open for the Director of Secondary Education to take his decision in terms of Section-18 (3)( ) but while doing so it must take into account as to whether the petitioner and/or respondent no. 6 do possess the requisite qualification. The case of the petitioner has to be considered because he claims to be the senior most teacher who even otherwise was eligible for being either appointed or promoted on the post of Headmaster. It was of course open for the Managing Committee to take a decision for filling up the post of Headmaster by way of direct recruitment but then the Managing Committee could not have made the necessity of passing hindi noting and drafting examination as an essential qualification for the post of Headmaster. Such qualification infact has not been prescribed for the post of headmaster in 7 nationalized high school and therefore, if the advertisement itself was illegal and/or tailor made to suit the respondent no. 6 alone, the Director of Secondary Education in course of examining the proposal of approval of the appointment of respondent no. 6 would examine as to whether the selection process for filling up the post of Headmaster in question was vitiated from the inception on account of erroneous/illegal qualification mentioned in advertisement. If, however, the Director of Secondary Education would find that the petitioner holding diploma in Phy.Edn would not be entitled for appointment on the post of Headmaster, inasmuch as, such diploma has not been declared to be equivalent to diploma in education as prscribed in Rule-4 of the Sewa Shart Niyamawali laying down the qualification for appointment on the post of Headmaster in nationalized high School, he would ignore the qualification of passing examination of hindi noting and drafting and would further examine the case of respondent no. 6 alone for approval on 8 the post of Headmaster. While doing so, the Director of Secondary Education will also look into the aspect as to whether the qualification of training possessed by respondent no.6 i.e. Bachelor of Teaching (B.T.) is an equivalent qualification of B.Ed/Dp.Ed/Diploma in Teaching/C.T. If the Director of Secondary Education finds that there is no Government order declaring the qualification of B.T possessed by respondent no. 6 to be equivalent qualification in terms of Rule-4 (d)(2) and the respondent no. 6 also does not possess the requisite qualification for the post of Headmaster, he would simply turn down the proposal of the Managing Committee seeking approval of the appointment of respondent no. 6. Learned counsel for the Managing Committee has very fairly stated that in the event the Director of Secondary Education shall reject the approval of appointment of respondent no. 6 on the post of Headmaster, the Managing Committee shall readvertise the post in which all the eligible persons including the petitioner 9 may have a chance to compete provided the petitioner has requisite qualification for the post of Headmaster as prescribed under Rule-4 of Sewa Shart Niyamawali 1983. Considering all these aspects the matter is remitted back to the Director of Secondary Education, who shall decide the whole issue not only in the light of the observations and directions given above but also after affording/giving opportunity of personal hearing to the petitioner, respondent no. 6 as also to the Managing Committee. Such an exercise shall be completed within a period of four months from the date of receipt/production of a copy of this order. Till the final decision is taken by Director Secondary Education, the existing arrangement on the post of Headmaster in the school shall continue. With the aforesaid observation and direction this application is disposed of. Ranjan (Mihir Kumar Jha, J.)