IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9727 of 1993 ========================================================== Ramesh Mishra, Son of Shri Bhagwan Mishra, R/o-Ekderwa, P.S.-Bagha, District-West Champaran, at present-Assistant Teacher, Shri Chandi Sanskrit Uchcha Vidyalaya, Harpur, P.O.-Mehura, Via-Bagaha, District-West Champaran. .... .... Petitioner. VERSUS 1. The State of Bihar. 2. The Chairman, Bihar Sanskrit Shiksha Board, East Boring Canal Road, Patna- 800001. 3. The Secretary, Bihar Sanskrit Shiksha Board, East Boring Canal Road, Patna- 800001. 4. The then Secretary, Shri Chandi Sanskrit Uchcha Vidyalaya, Harpur, P.O.- Mehura, Via-Bagaha, P.S.-Bagaha, District-West Champaran. 5. Sri Vikramaditya Tripathi, Headmaster, Shri Chandi Sanskrit Uchcha Vidyalaya, Harpur, P.O.-Mehura, Via-Bagaha, P.S.-Bagaha, District-West Champaran. 6. Shri Anirudha Nath Tiwary, Assitant Teacher, Shri Chandi Sanskrit Uchcha Vidyalaya, Harpur, P.O.-Mehura, Via-Bagaha, P.S.-Bagaha, District-West Champaran. 7. Sri Triloki Nath Dubey, Son of Shri Kedar Dubey, R/o-Vill.-Trikulma, P.S.- Choutarba, District-West Champaran. 8. Special Director, Secondary Education, Government of Bihar, Patna. 9. The District Education Officer, West Champaran, Bettiah. ... .... Respondents. ========================================================== Appearance : For the Petitioner : Mr. Nand Gopal Mishra. For the State : Mr. Rajeev Kumar Singh, G.P.-15. For the Respondent Nos.2&3 : Mr.Awadhesh Prasad. Mr. Surendra Kumar. For the Respondent Nos.4&5 : Mr. Sri Prakash Srivastava. For the Respondent No.7 : Mr. Tara Nath Jha. ========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) ****** By this writ application, the petitioner has challenged the order of the Chairman, Bihar Sanskrit Shiksha Board dated 27.07.1993 (Annexure-19). Effectively, that order was intended to end a controversy 2 arising between the petitioner and respondent no.7. Parties have been noticed and they have appeared. The facts are not really complicated though it has spread over for a long period. On behalf of respondent no.7, a preliminary objection is raised that the impugned order Annexure-19, being the order of the Chairman, Bihar Sanskrit Shiksha Board, could have been impugned in an appeal in terms of the Bihar Sanskrit Shiksha Board Act, 1981 and, no appeal having been preferred against this order, which is an alternative remedy, this writ petition should be dismissed. In my view, it is too late in the day to urge the same. This writ petition was filed in the year 1993 and, was admitted for final hearing on 06.10.1993. Relegating the petitioner to alternative remedy after 18 years, would only be unjust, unfair and undesirable. Had this objection being taken in 1993 or soon thereafter, it could have been entertained but not after 18 years. It is well settled that rule of alternative remedy is a matter of discretion and not a matter of jurisdiction of this Court. I, therefore, reject this preliminary objection. In this connection, I may refer a judgment of the Apex Court in the case of L. Hirday Narain Versus Income Tax Officer, Bareilly since reported in AIR 1971 Supreme Court 33. The facts of this case are not complicated and, in my view, the facts itself would decide the case, if they are seen in proper perspective. There is a privately run Sanskrit School, namely, Shri Chandi Sanskrit Uchcha Vidyalaya, Harpur (Bagaha) in the district of West Champaran, duly recognized by Bihar Sanskrit Shiksha Board. The School had seven sanctioned posts of teachers. Five posts were duly filled up, the 3 sixth and seventh posts were required to be filled up. The sixth post was for ‘Acharya’ and the seventh post was for Graduate. Accordingly, in May, 1983 a newspaper advertisement for the two posts was issued by the Secretary of the Managing Committee of the School. Pursuant to the aforesaid, respondent no.6, Shri Anirudha Nath Tiwary and the petitioner applied. Shri Anirudha Nath Tiwary had applied for the ‘Acharya’ post and petitioner had applied for Graduate post. Thus, they had applied respectively for sanctioned post nos.6 & 7. Selection was done and respondent no.6 and the petitioner were selected for the respective posts. The proceeding of the Managing Committee dated 30.05.1983 is annexed as Annexure-2 and, pursuant thereto, letters of appointment was issued to the parties in respect of which petitioner’s appointment letter is Anneuxre-3. This appointment was subject to approval by the Bihar Sanskrit Shiksha Board (hereinafter referred to as the Board). Accordingly, by Anneuxre-4 dated 27.10.1983, the School sent recommendation for approval of the appointment of the petitioner and respondent no.6 to the Board. It is not in dispute that the Sanskrit Shiksha Board granted approval so far as respondent no.6 is concerned. It is also not in dispute that appointment of petitioner was not approved though there is no communication or order of disapproval as well. What we have now is a peculiar letter/order from the Board which is Annexure-A/1 to the counter affidavit of respondent no.7. This is an office order dated 19th January, 1984. By this letter sent from the Board to the School concerned, it is noted that respondent no.7, who was working in another School, has been transferred to the School in question and the Managing Committee of the School has no 4 objection to the said transfer. At this stage itself, I may notice that this is de hors of statutory provision, statutory power and authority of the Board. Both the Schools are private schools. There is neither authority nor any provision of any transfer and, obviously, this so called transfer was something that was being imposed upon a School without authority by the Board. Be that as it may, as petitioner was not getting his approval and he came to know that probably it was because of this adjustment of respondent no.7, the post not being now available, the Board was not granting approval, he came to this Court, but this Court in C.W.J.C. No.5171 of 1986 by order dated 06.03.1987 (Annexure-11) relegated the petitioner to the Chairman of the Board. Accordingly, the matter was taken up by the Chairman of the Board where the School informed the Chairman that vide their communication dated 28.04.1987 (Annexure-12), pursuant to the order of the earlier Chairman of the Board, respondent no.7 has been adjusted in the eighth post (only seven posts were sanctioned) and in due deference to the order of the Chairman he was being paid as well. Apparently, this was because the seventh post has been filled up by advertisement and selection in which petitioner had been selected and appointed awaiting approval. This fact is also seen from Annexure-10 to the writ petition which is the salary statement showing positions of various teachers wherein respondent no.6 is shown on the sixth post, petitioner is shown on the seventh post and respondent no.7 is shown on the eighth post. The Chairman of the Board then took up the matter and by order dated 22.12.1987 (Annexure-13) held that the earlier purported order of the Board transferring the respondent no.7 to the School was wholly illegal and unauthorized. It could not have been 5 done. It was, accordingly, cancelled. The Chairman clearly held that in view of this illegality, respondent no.7 would not be entitled to any remuneration. Consequent thereto, by Anneuxre-14 the Board cancelled the approval of joining of respondent no.7 in the School and by the same order granted approval to the appointment of the petitioner. Respondent no.7 then filed an appeal before the Special Director, Secondary Education, Government of Bihar, Patna. The Special Director, without considering the matter in the correct perspective, set aside the order of the Chairman, which was then challenged by the petitioner in C.W.J.C. No.8366 of 1988, which was disposed of by order dated 23.11.1989 (Annexure-18). This Court set aside both the orders, being the order of the Chairman in favour of the petitioner and the order of the Special Director, Secondary Education, Government of Bihar, Patna, the appellate authority, in favour of respondent no.7 and relegated the matter to the Chairman of the Board once again. It is pursuant to this order that the Chairman of the Board has passed the impugned order dated 27.07.1993 merely directing the School to make payment to respondent no.7 without going into the fact about legality to his transfer/appointment. Thus, the question is what is the right of the petitioner and what is the relief, if any, he is entitled to? On behalf of respondent no.7, another objection has been raised. He submits that the petitioner has not challenged the transfer order of respondent no.7 as initially made. In my view, it is misconceived and is noted only to be rejected. The whole controversy started with the challenge to the said order at the very first instance. The Chairman of the Board, upon challenge being 6 made by the petitioner vide Anneuxre-13, had set aside the transfer order of respondent no.7 at the instance of the petitioner and, consequently, granted approval to the petitioner’s appointment. In such a situation, it cannot be said that the petitioner has not challenged the order of transfer of respondent no.7. Various pleas have been raised by both the sides. Allegations and counter allegations have been made. In my view, I need not go into all those controversies. The School and the Board both have filed counter affidavits. Both have accepted that pursuant to advertisement, School had selected respondent no.6 and petitioner for the post which were to be filled up by the advertisement. Under the same memo and by the same communication, School had sought approval of selection and appointment of respondent no.6 and the petitioner. The Board, in its latest counter affidavit, has categorically taken a stand that only because the Board illegally ordered the transfer of respondent no.7, treating the vacancy for the seventh post, to be filled uuup accordingly, it chose not to grant approval of the appointment of petitioner which was all wrong. The Board has categorically stated that there was no provision for transfer whatsoever and the Board could not have done it because the School where respondent no.7 was working and the School where he was transferred were both private schools beyond the control of the Board in these matters. They were independent Schools with independent management. This Court asked the respondent no.7 to show any statutory provision or provision having force of law which authorized the Board to take such an action or impose such an order. None could be shown. If that 7 be the position then the only ground for not granting approval to the petitioner at that time was unauthorized imposition of respondent no.7 on the post by virtue of transfer. The post, as noted above, had to be filled by advertisement and selection to which respondent no.7 never applied. He did not face the selection committee. He was never selected yet he was thrust upon the post by the Board in the manner wholly illegal and unauthorized in law that deprived the petitioner to the approval to the appointment so made. In my view, this fact resolves the dispute in itself. The thrusting of respondent no.7 on the management of the present School by the Board, being wholly illegal and unauthorized, the petitioner cannot be deprived of his selection and appointment in the past. Thus, in the present, his selection and appointment has to be approved by the Board as was done earlier. The transfer of respondent no.7 is held to be void-ab-initio. This gives rise to another problem. Respondent no.7 has been undoubtedly working and receiving wages though having been posted unauthorizedly. On behalf of Principal of the School, it is said that in anticipation of approval, petitioner having been appointed has also been working all along. What should be the result? As held above, the approval and placement of respondent no.7 was inherently illegal and for that the petitioner cannot be made to suffer. It is said at the Bar on behalf of respondent no.7 that in the School there exists another sanctioned vacancy. If that be so, then it would serve equity if respondent no.7 is shifted to that post and the post, which rightfully belonged to the petitioner, is made available to the petitioner. About remuneration, it would be open to the Board to decide 8 because the fact remains that both the petitioner and respondent no.7 have been teaching and it is well settled that no service is gratuitous both having worked for the post must be paid. It is a matter for the Board to enquire into and decide. I, accordingly, order that in view of the aforesaid fact the transfer of respondent no.7 to the seventh post in the School in question was void-ab-initio, but having been there for such a long period, he may be adjusted in the School on any other sanctioned vacancy, if it is available. The petitioner, who had been selected and appointed for the seventh post by the Managing Committee, would continue as such on the said post and the Board would grant due approval to it as it had earlier done and take decision in the matter of payment of salary in accordance with law at the earliest preferably within three months. This writ application is, accordingly, disposed of. The Patna High Court 15th September, 2011 Trivedi/NAFR (Navaniti Prasad Singh, J.)