IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9485 of 2003 SURYA NARAYAN YADAV, son of Sri Sheo Shankar Yadav, Assistant Teacher of Rupan Sheo Shankar Janta High School Chhaurhi, Dhalokhar, P.S. Ladania, District Madhubani … Petitioner Versus 1. THE STATE OF BIHAR through its Secretary, Department of Education, Govt. of Bihar, Patna 2. The Director Secondary Education, Budh Marg, Patna 3. The District Education Officer, Madhubani … Respondents ----------- 3. 20.9.2010 Having heard Dr. M.P.Shukla, learned counsel for the petitioner and the counsel for the State as with regard to the following relief: “This is an application for issuance of certiorari for quashing the letter no. 791(Vidi) dated 29.12.2001 with which the prayer of the petitioner for regularizing his service as untrained teacher with effect from recognition of the school i.e. from 17.12.1977 to 29.4.1988 as allowed in the case of Ram Sunder Singh vide letter no.12 March 1981, Janardan Mandal vide memo dated 15.4.1981 and Jagdish Prasad and orders vide order dated 8.11.1983 all issued by the Director cum Special/ Addl. Secretary, Education Department, Bihar, Patna, Budh Marg. It is also prayed to direct to respondents to dispose case of the 2 petitioner in the light of the direction of this Hon’ble Court in C.W.J.C.No. 3944/83 dated 2.11.1995 to dispose of the representation in the light of the order passed in C.W.J.C.No. 20 of 1982 and analogous cases disposed of on 2.12.1991. It is further prayed to allow him the consequent benefits arising out of his recognition of service as the assistant teacher from 17.12.1977.” this Court must hold that the decision taken by the Director, Secondary Education, in the case of the petitioner on 16th December, 1988 recognizing the services of the petitioner as a teacher of Rupan Sheo Shankar Janta Uchya Vidyalaya, Madhubani after acquiring his training and publication of result of such training course with effect from 30.4.1988 does not suffer from any infirmity. The repeated remand made by this Court on the instance of the petitioner for disposal of his representation and ultimate impugned order passed by the authority on 29.12.2001 in fact is only enunciation of the clear proposition of law that an 3 untrained teacher could not have been appointed much less recognized by the Government in the High Schools which were taken over on 2.10.1980. This aspect of the matter in fact stands settled by the Division Bench Judgment of this Court in the case of Om Prakash Choubey vs. The Director (Secondary Education) cum Addl. Secretary, Govt. of Bihar & anor., reported in 1985 PLJR 1110, wherein after discussing the provisions of the Act and Circulars the law was laid down in the following words: “11. I have noted the Circulars and Orders issued from time to time and the Acts and the Rules introduced in the field for recruitment of the teachers in non-government schools before and after the taking over of the managements of such schools by the State Govt. Waxing and waning attitude of the respondents in the matter of appointment of the teachers in the non-government High Schools is alone responsible for the petitioner’s grievance and they have done everything to avoid any definite course and adherence to law. True, there had been no minimum qualifications prescribed for an Assistant Teacher in a High School under 1955 Rlules, but in 4 the rules framed under section 8(1) of the 1960 Act published in the Official Gazette (Extraordinary) on 25th October, 1972 a minimum qualification was prescribed stating in Rule 4(3) thereof that except in cases of specialized disciplines like music, craft, classical literature etc. minimum qualification of a teacher would be trained graduate. Neither 1960 Act nor rules framed thereunder ever gave to any person power to deviate from the rules as to the minimum qualification of the teachers. The minimum qualification prescribed under 1972 rules, therefore, could not be relaxed either by the State Government or the Board of Secondary Education. Since, however, there have been provisions made as to the appointment of Assistant Headmasters and Headmasters having minimum qualification of trained graduates in the 1972 Rules whereas such appointments could be given even to those who were not trained but simply graduates before enfocement of the 1972 rules some provisions were required to be made for teachers working in the schools so that they could obtain requisite training and qualify themselves for prospective appointments as 5 Assistant Headmasters and Headmasters. When such instruction came to provide to teachers working in the High Schools facilities for training etc. perhaps, intentions were obvious and genuine. Attempts not to interfere with the services of the teachers already appointed before 1972 Rules came in force, were/are understandable, but in the schools formally came to exist after the enforcement of 1972 Rules, when the question of regularizing services of the teachers appointed by the sponsors came up before the Board of Secondary Education and State Government, they issued instructions as if only to accommodate those who were recruited by persons not legally empowered to appoint and of those who were not qualified for such appointments. Once they started doing it those who could not obtain their favour came to the courts in a large number. Some times noticing that persons similarly situate were given regular appointments and invariably because the respondent State in such cases conceded that the petitioners also were entitled to get their services regularized, this Court in a number of cases issued necessary directions. To 6 mention only a few of such cases which were decided by this Court I may refer to judgments in C.W.J.C.Nos. 413 of 1978 disposed of on 6.9.1979 by L.M.Sharma, J. 3430 of 1978 disposed of on 7.8.1979 by S.Ali Ahmad, J. 2613 of 1983 disposed of on 6.5.1983 by R.P.Sinha, J. 159 of 1981 and of 1981 disposed of by B.P.Sinha, J. on 3.9.1983 and 10.9.1983 respectively and the cases of Chandra Kumar Chakravarty vs. the Deputy Director of School Education, Krishna Prasad vs. the State of Bihar Yogendra Khan and others vs. the State of Bihar and others (1979 BBCJ 378, 1981 BBCJ 387: 1982 PLJR 214, 1983 BBCJ 139: 1983 PLJR 214 respectively). In all these cases the facts noticed are that the petitioners were appointed by the Management of the Schools on the post of teacher before its recognition by the Board, Circulars prevailing at the relevant time provided that their services were to be recognized if they satisfied the condition that they were appointed as teachers before the recognition and were willing to get themselves trained and the respondents gave to other teachers similarly situate opportunity to continue as teachers subject to 7 their obtaining necessary training/ training or improving their qualifications. Unfortunately, for this Court at no time relevant rules were brought to its notice and since the respondents extended their favour to some, this Court always thought it proper to give to their complaining of discrimination at the hands of the respondents some benefits. By extending helping hands to those who were recruited in violation of the rules the respondents not only perpetuated and encouraged recourse to appointments in violation of the rules but provided opportunity to those having right links to sponsor such schools, appoint their unqualified favourites and get their services regularized, leaving a number of qualified persons on the streets running from department to department and from one employment exchange to another employment exchange for getting their names registered in the list of the unemployed person. A mere glance to the contents of the Circulars and instructions would convince that a Constitutionally responsible Govt. of the State and the Board created under a legislative sanction give no thought to the rule of law and 8 acted as if their authority accepted no discipline of law. A censor of their conduct, however is of no help to this Court and the question raised on behalf of the petitioners have to be decided in accordance with law. I have already noted that the cases decided on the point and brought to our notice provide no guidance and perhaps now abstract ligalisim also shall give no help to this Court. It is plain and clear that the petitioners who are not trained graduates, do not possess minimum qualifications for appointment as teachers. Leanred counsel appearing for the petitioner in C.W.J.C.No. 3634 of 1983 has, however, submitted that with the repeal of the 1960 Act by the ordinance published on 21.5.1974, the rules published in the Bihar Gazette on 25.10.1972 were also repealed. No rules were framed either under the Ordinance repealing the 1960 Act and/or its successive Ordinance and the successor Act, namely, the Bihar Secondary Education Board Act, 1976. No such law, therefore, existed which could inhibit the powers of the sponsors/ managements of the schools seeking recognition from the Board of Secondary Education to make appointment of 9 persons who were not trained graduates as teachers in the schools. This argument, however, in my opinion, is not acceptable. A perusal of the provisions of the 1974 Ordinance repealing the 1960 Act and its successor Ordinances as also the 1976 Act will show that in regard to such matters including the service conditions of the teachers of the non-government High Schools which were/are not specifically provided under such provisions, rule making power was/is vested in the Board of Secondary Education and/or the State Government. It is well settled that a rule validly made, becomes a part of the parent Act, and survives the repeal of the Act under which it is framed, if it is not inconsistent with the provisions of the repealing Act and if such a rule can be framed under it, Section 27 of the Bihar and Orissa General Clauses Act provides: where any enactment is repealed and re-enacted by a Bihar Act with or without modification then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bylaw or from made or issued under the repealed enactment shall so far as it is not 10 inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re- enacted unless and until it is superseded by any appointment, notification, order, scheme, rule, bylaw or form made or issued under the provisions so re-enacted. 1972 Rules which were framed under section 8(1) of the 1960 Act to the extent they provided for the minimum qualification of the teachers, evidently survived the repeal by the Ordinance in the year 1974 and by the Act in the year 1976, because no rule and/or statutory provisions otherwise created, ever existed causing or creating repugnancy of any kind. Such statutory provision as to the minimum qualification of the teachers would not be altered by the executive Acts of the State. The respondents acted in gross violation of the statutory provisions as contained in the 1972 rules by issuing instructions to regularize recruitment of unqualified teachers. The manner in which the respondents have issued instructions, creates an impression that for them there was no law, managements of non-government High School functioned as Jagirdars and 11 distributed appointments in such school like alms. 12. In quite a few Circulars referred to above the reckoning date is mentioned as 28.9.1973. Although the rules laying down the minimum qualifications had come in force w.e.f. 25.10.1972, yet the respondent State introduced 28.9.1973 as the date until which appointments of untrained graduates or persons possessing lesser qualifications were acknowledged as valid. However, even this date (28.9.1973) could not be retained for long and appointments made upto 18.6.1977 and even thereafter were/ have been regularized. It has been contended on behalf of the petitioners that as the respondents have regularized appointments of other teachers who were similarly appointed and possessed lesser qualifications than prescribed, they cannot deny to the petitioners recognition and regularization of their appointments as well. Force of this argument is acknowledged almost in every case decided until now, as noticed above by me. It shall in no way lie in the mouth of the respondents to say that they cannot give to the petitioners the same treatment which they have given to others similarly situate. 12 Perhaps, on this a mandamus should issue. But can a mandamus be issued? In my view, no. 13. A mandamus is issued to enforce performance of a legal duty. In my opinion, the only duty which the respondents were/are required to discharge is to strictly adhere to the provisions of the rules. A Govt. constitutionally created to exercise executive powers is obliged to act only in accordance with law. It has no authority of its own beyond what is given to it by law. The respondents have failed to perform their duty to act in accordance with law and they have done so by regularizing appointments of unqualified teachers and by not insisting to enforce the law. If a mandamus has to be issued, it has to be issued only to ask them to refrain from acting in violation of the law. No mandamus can issue to grant judicial sanction to such administrative drafts as shown by the respondents in the Circulars referred to above and in regularizing appointments of unqualified teachers in the schools of the State.” In that view of the matter, in the case of the petitioner when it is absolutely 13 clear that he was an untrained teacher in his school which for the first time had got permission for establishment only with effect from 23.6.1976 and full recognition on 17.12.1977, there would be no prospect for the petitioner to contend that his appointment made as an untrained teacher in the year 1972 should have been recognized. The respondents have rightly not taken into account the period of 1972 to 1998 for the period he had been an untrained teacher, inasmuch as at no point of time after 1960 Rules any appointment of untrained teacher was permissible. That being so, there is no merit in this application and it is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/