IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3152 of 1997 BIRENDRA KUMAR, S/O SHRI JATA SHANKAR PRASAD, R/O MOHALLA-BELISARAI, P.S.-MOTIHARI TOWN, DISTRICT- EAST CHAMPARAN. ………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR-CUM-SPECIAL SECRETARY, PRIMARY EDUCATION, NEW SECRETARIATE, BAILEY ROAD, PATNA, BIHAR. 3. THE REGIONAL DEPUTY DIRECTOR, EDUCATION, MUZAFFARPUR. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, EAST CHAMPARAN, MOTIHARI. 5. THE CONVENOR MANAGING COMMITTEE OF BANGALA MIDDLE SCHOOL, NEAR TOWN HALL, MOTIHARI, P.O.+P.S.-MOTIHARI, DISTRICT-EAST CHAMPARAN. 6. THE HEAD MASTER, BANGALA MIDDLE SCHOOL, NEAR TOWN HALL, MOTIHARI, P.O.+P.S.-MOTIHARI, DISTRICT-EAST CHAMPARAN. ……………RESPONDENTS. ----------- For the Petitioner : M/S Sri Prakash Srivastava-1, Anil Kumar and Rajeev Ranjan, Advs. For the State : Mr. Shashi Shekhar Pd. Sinha, AC to GP-IX. P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J: In this writ application petitioner has prayed for quashing of Annexure-7, an order dated 31.1.1997 passed by the respondent Director, rejecting the representation of the petitioner for payment of his salary on the finding that his appointment was not legal and not made in a proper manner, which was communicated to the petitioner through memo no. 258 dated 4.2.1997. Further prayer has been made in the writ petition to declare his appointment as valid, legal and in accordance with law with a direction to the respondents to pay his salary, arrears as well as 2 current. Facts as pleaded in the writ application are that, pursuant to the resolution of the Managing Committee of the School dated 4.2.1983, and under the orders of the President of the Managing Committee of the School dated 4.2.1983, as contained in Annexure-1, petitioner was appointed as 3rd Vernacular Teacher on 5.2.1983 on the condition that he will have to pass S.T.C. examination within five years from the date of his appointment. The resolution of the Managing Committee was taken after relaxing the Rules of the appointment as it was found that science teaching was essential in the school and the petitioner was having qualification of I.Sc. in 1st Division. The appointment of the petitioner was communicated to the respondent District Superintendent of Education (for short ‘D.S.E.’). Annexure-2 dated 15.3.1984 is the order of the D.S.E. by which petitioner and others were sent for training; Annexure-2/A dated 22.3.1984 is his relieving order; Annexure-2/B dated 1.4.1984 is the certificate of attendance of the petitioner issued from the Training Centre; Annexure-3 dated 31.7.1991 is another order of the D.S.E. sending the petitioner and two others for 21 days of training; Annexure-3/A dated 3.8.1991 is again an order of relieving of the petitioner for training; Annexure-3/B dated 19.8.1991 is again a 3 certificate of completion of training by the petitioner issued from the Institute; Annexure-4 dated 3.7.1992 is again an order of the D.S.E. deputing and relieving the petitioner for in service training; Annexure-4/A dated 31.5.1993 is the certificate of completion of one year training by the petitioner issued from the Institute; Anneuxre-4/B dated 1.6.1993 is joining report of the petitioner in the School, Annexure- 4/C is the marksheet of the petitioner in respect of teachers training examination of 1994 having been declared successful in the exam in 1st Division; Annexure-4/D dated 29.6.1995 is the college leaving certificate issued from the Training College. Other documents produced on record in respect of the petitioner are Annexure- 9 dated 18.10.1993, an order of the office of the respondent D.S.E., constituting the Ad-hoc Committee of the school in which petitioner was nominated as teacher representative; Annexure-11 dated 27.12.1989, an order of the D.S.E. by which petitioner was allowed to open G.P.F. account; Annexure-10 dated 5.4.1994, an order of the D.S.E. by which petitioner was allowed to draw advance from his G.P.F. account for the purposes of treatment of his wife; Annexures-12 and 13 series, the orders of the deputation of the petitioner for various duties from time to time. On the basis of these documents, learned 4 counsel for the petitioner submitted that the petitioner’s appointment was duly approved and acknowledged by the respondents and he was treated as in regular service. However, when salary bill was submitted to the D.S.E. some time in 1994, the then D.S.E., vide Annexure-5 dated 27.1.1995, made some query from the Headmistress to which she replied through Annexure-5/A dated 22.2.1995, clarifying that the School was Minority School and on the basis of fixation of the pay scales of the employees of the School done by the office of the D.S.E. the employees were receiving their salary. She also annexed with her reply a photocopy of the order of sanction of posts in the School. She, therefore, requested for release of grants at an early date since the employees of the School had not been paid their salary from August, 1994 due to which they were facing financial hardships. Inspite of the request of the Headmistress funds were not released for payment of the salary of the petitioner and other employees of the School. Hence, two writ applications were filed in this Court, out of which one was by the petitioner himself, for direction to the respondents to release the grant for payment of their salary. This Court noticed that proposition statement for payment of salary in the revised scale as per 4th pay revision had not been submitted by the D.S.E. 5 to the respondent Director. While disposing of the writ applications by order dated 2.5.1996, Annexure-6 with the writ application, this Court noticed the stand in the counter affidavit of the respondents that for the moment the employees of the School were entitled for payment of their salary as per the 3rd pay revision till the revision of their pay scale as per 4th pay revision was approved by the respondent Director. Therefore, the Court directed the respondent Director to examine the matter and pass orders within six weeks on the basis of proposition statements furnished by the D.S.E. In respect of the present petitioner, on the submissions of learned counsel for the State, the Court left it open for the Director to ascertain the genuineness of his appointment and directed that if his appointment was found to be genuine necessary orders for payment of his salary should also be issued. In terms of the orders of this Court proposition statement was sent by the D.S.E. to the Director vide Annexure-15. In the proposition statement petitioner was shown working as 4th teacher in the School against five sanctioned posts of teachers and his date of appointment was shown as 5.2.1983 and the letter number and date of the approval of his services was mentioned as 573/19.12.1983. Since this Court had granted 6 liberty to the respondent Director to examine the genuineness of the appointment of the petitioner before issue of order of his appointment, the petitioner filed his representation before the respondent Director with a copy of the order on 14.10.1996. Thereafter, in terms of the orders of this Court, the respondent Director passed orders, vide Annexure-7 dated 31.1.1997, holding the appointment of the petitioner as not valid. In his order respondent Director found that the appointment of the petitioner was not made in the light of the Rules applicable at the time and not from the panel prepared in the district and without approval of the District Education Establishment Committee. He held that, in fact, petitioner was not appointed and no appointment letter was issued to him and the D.S.E. had not issued any letter of approval which, according to him, was evident from the fact that petitioner was not paid his salary from 5.2.1983 till August, 1988. Learned counsel for the petitioner submitted that the respondent Director, while holding that there was no appointment of the petitioner and he was not issued any appointment letter and his appointment was not approved, has committed errors of record. He submitted that, in fact, the Managing Committee of the School had resolved to appoint the petitioner pursuant to 7 which appointment letter was issued to him, vide Annexure-1, which was also approved by the D.S.E. as mentioned in the proposition statements Annexure-15. He submitted that the School was a Minority Institute and, therefore, the Managing Committee had the powers to relax the Rules for appointment in the exigencies of the situation. On the question of powers of the Managing Committee of a Minority Institute, learned counsel for the petitioner relied upon a judgment of this Court reported in 2003 (2) BLJ 486. Counter affidavit has been filed in the case by respondent no. 4. Learned counsel for the respondents submitted that the Managing Committee of the School had illegally appointed the petitioner and his appointment was not approved by the then D.S.E. He submitted that as per the Rules for appointment no untrained teacher could be appointed in the School and any appointment of teacher in the School had to be made only on the basis of list of trained teachers prepared by the District Establishment Committee. In view of the challenge by the petitioner in respect of errors of record committed by the respondent Director in his order, as impugned, this Court by an earlier order dated 25.11.2008 had directed the respondents’ counsel to produce the records in respect of appointment of teachers in the School. 8 In compliance to the said orders, learned counsel for the respondents produced the original proceeding book of the Managing Committee of the School of the period. From perusal of the said proceeding book of the Managing Committee of the School it was evident that the Managing Committee had met on 4.2.1993 and had considered the case of the petitioner for appointment. It found that the petitioner was I.Sc. with 1st Division. It also considered that there was need for science teaching in the school. Therefore, by consciously relaxing the Rules of appointment, it had resolved to appoint the petitioner on the condition that he will have to pass S.T.C. course within five years. Annexure-1 shows that pursuant to this resolution of the Managing Committee petitioner was issued letter of appointment by the president of the Managing Committee. Subsequent correspondences and orders, as referred to by learned counsel for the petitioner, show that the authorities of the State Government, namely, respondent D.S.E. had full knowledge of appointment of the petitioner and his functioning in school, and from time to time, he was sent for training by the D.S.E. and various other orders were passed in his respect. Annexure-15 specifically refers to a letter, namely, letter no. 573 dated 10.12.1993 in respect of approval 9 of appointment of the petitioner. Thus, apparently, there is a resolution for appointment of the petitioner by a competent body i.e. Managing Committee of the School; there is an appointment letter issued to him; there is reference to a letter of the approval of his appointment in an official document and there are several letters acknowledging and dealing with the petitioner and his services by the authorities. These materials clearly negative the finding of the respondent Director given in the impugned order to the effect that there was no appointment of the petitioner, no appointment letter was issued to him and there was no approval of his appointment. Thus, there is substance in submission of learned counsel for the petitioner that the respondent Director has committed errors of record in his order holding the petitioner’s appointment as not legal and valid. The next question is whether the Managing Committee of the School was competent to appoint the petitioner. It has not been denied that the School in question was a Minority School. It is well settled that the Managing Committee of a Minority School has much more freedom to deal with the affairs of the School in comparison to Managing Committees of general schools. It is true that the general mode and 10 manner of appointment of a teacher and the normal procedure prescribed for the general schools, are broadly applicable to a Minority Institute also to a considerable extent. But in view of the freedom a Managing Committee of a Minority School exercises in managing the affairs of the Institution it cannot be accepted that in all eventuality it has to follow the same in absolute terms. The proceeding of the Managing Committee as produced by learned counsel for the respondents showed that the Managing Committee of the School had taken a conscious decision to relax the Rules of appointment in view of the qualification of the petitioner and for the benefit of science teaching in the School. This appointment was also acknowledged by the authorities of the State from time to time as evident from numerous documents placed on record. The proceeding of the Managing Committee clearly demonstrates that its decision was a bona fide one and in the interest of the Institution. In the circumstances, this Court is unable to accept the submissions of learned counsel for the State that the appointment of the petitioner was illegal and outright void. The Managing Committee of the School, which was a Minority School, definitely exercised much more freedom to take its decision in the larger 11 interest of the Institution which apparently was not mala fide or for any extraneous consideration. In the circumstances, the proceeding of the Managing Committee appointing the petitioner may be at best termed as irregular, but definitely not illegal. Respondents have not produced any material on record to show that the Managing Committee of a Minority Institution was completely debarred from taking decision for appointments in the Institution on its own. The Government Circulars annexed with the counter affidavit do not support the stand of the respondents and the Government letter no. 3058 dated 6.12.1985 is, in fact, not applicable to a Minority Institution. In the result, this writ application is therefore, allowed. The said impugned order of the respondent Director, as contained in Annexure-7, and letter of the D.S.E. dated 1.3.1997, as contained in Annexure-8, directing the Headmistress to dispense with services of the petitioner, are quashed. Learned counsel for the petitioner has submitted that since the petitioner has not worked in the Institution since the issue of letter by the D.S.E. to the Headmistress, as contained in Annexure-8, he does not insist for any order for payment of salary of the period. However, he submitted that in the event the 12 petitioner succeeds, he may be allowed other benefits of service in respect of seniority, pay revision etc. as may be admissible to him counting his services with effect from his initial date of appointment. The submission of learned counsel for the petitioner is quite reasonable. Therefore, this Court directs the respondents to reinstate the petitioner in service in the School within three months from the date of receipt/production of a copy of this order and allow him continuity of service, seniority and pay revision etc. as may be admissible to him, except arrears of salary of the period when he was out of service. Patna High Court, The 26th March, 2010 N.A.F.R./Arvind (J. N. Singh, J.)