CIVIL WRIT JURISDICTION CASE No.12553 OF 2003 WITH CIVIL WRIT JURISDICTION CASE No.12563 OF 2003 WITH CIVIL WRIT JURISDICTION CASE No.10679 OF 2004 WITH CIVIL WRIT JURISDICTION CASE No.11966 OF 2003 WITH CIVIL WRIT JURISDICTION CASE No.2959 OF 2004 ********* ( IN THE MATTER OF APPLICATIONS UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA) ********** DR. SADARE ALAM, SON OF LATE MD. KHALIL, RESIDENT OF VILLAGE ASHURA, POST OFFICE RATHOS, POLICE STATION BISFI, DISTRICT MADHUBANI ……………………………………PETITIONER (CWJC NO. 12553/03) WITH MD. ASLAM HUSSAIN, SON OF LATE MUAZZAM HUSAIN, RESIDENT OF MOHALL DARGAH GHERA, POST OFFICE MAHENDRU, POLICE STATION SULTANGANJ, DISTRICT PATNA ………..PETITIONER (CWJC NO. 12563/03) WITH 1. MD. ZAFAR SADIQUE, SON OF MUSTAFA RAZA KAMALI, RESIDENT OF VILLAGE POKHRAIRA, POLICE STATION NANPUR, DISTRICT SITAMARHI 2. MD. ALLAUDDIN, SON OF LATE HAFIZ ABDUL HAFEEZ, RESIDENT OF VILLAGE DOHRA, POLICE STATION JALAY, DISTRICT DARBHANGA …………………………………PETITIONERS (CWJC NOS. 10679/04 & 11966/03) WITH ABID HUSSAIN @ MD. ABID HUSSAIN, SON OF LATE MD. HANIF KHAN, RESIDENT OF VILLAGE HIRAUTA, POLICE STATION TARIYANI, DISTRICT SHEOHAR, AT PRESENT POSTED AND WORKING AS AN ASSISTANT TEACHER, IN MADARSA ISLAMIA SHAMSUL HODA, PATNA-6 ……………………………………………………….PETITIONER (CWJC NO. 2959/04) VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY CUM COMMISSIONER, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR, ADMINISTRATION CUM DEPUTY SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE SPECIAL DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA 5. THE SECRETARY, BIHAR STATE MADARSA EDCUATION BOARD, PATNA 6. THE PRINCIPAL, MADARSA ISLAMIA SHAMSUL HUDA, PATNA -6, POLICE STATION PIRBAHORE, DISTRICT PATNA 7. THE BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHAR LAL NEHRU MARG (BAILEY ROAD), PATNA THROUGH ITS SECRETARY 2 8. THE DIRECTOR, BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHAR LAL NEHRU MARG (BAILEY ROAD), PATNA 9. THE DEPUTY SECRETARY, 15, JAWAHAR LAL NEHRU MARG (BAILEY ROAD), PATNA ……………………………………………………………………RESPONDENTS (IN ALL CASES) *********** FOR THE PETITIONERS :- MR. RAJENDRA PRASAD, SENIOR ADVOCATE (IN CWJC NOS. 12553 & MR. RAJEEV SINGH, ADVOCATE 12563 OF 2003) MR. ONKAR KUMAR, ADVOCATE FOR THE PETITIONERS :- MR. RAMAKANT SHARMA, SENIOR ADVOCATE (IN CWJC NOS. 10679/04, MR. MD. ANISUR RAHMAN, ADVOCATE 11966/03 & 2959/04) FOR THE S T A T E :- MR. A. AMANULLAH, G.A. 4 MR. S. RAHMAN, AC TO GA 4 FOR THE B P S C :- MRS. NEELU AGRAWAL, ADVOCATE MR. MD. NADIM SERAJ, ADVOCATE FOR RESP 9 TO 11 :- MR. R. S. ROY, SENIOR ADVOCATE (IN CWJC NO. 11966/03) FOR THE INTERVENORS:- MR. RAMAKANT SHARMA, SENIOR ADVOCATE (IN CWJC NOS. 12553 & 12563 OF 2003) ************ P R E S E N T HON’BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. In this writ application, several interlocutory applications have been filed. I.A. No. 2087 of 2004 has been filed by Syed Mashood Ahmad, Md. Kalim Akhtar and Md. Aftab Alam with a prayer to add them as intervenor respondents. Since the aforesaid persons will be affected if this Court passes an order in favour of the 3 petitioner, they are thus necessary parties in this case. I.A. No. 4605 of 2007 has been filed on behalf of Md. Zafar Sadique, Md. Alauddin, Md. Abid Husain and Md. Sayeed Ahmad to be added as intervenor- respondents in this case. These persons too will be affected by the order if passed in favour of the petitioner and as such, they too are necessary parties in this writ application. The aforesaid two interlocutory applications have been filed after a prayer has been made by the petitioner for amendment by filing I. A. No. 1121 of 2006 by which he has challenged the appointment to the post of Assistant Maulavi in the Bihar Education Service Class-II. The intervenors were appointed in pursuance of the advertisement which is also under challenge in this writ application. Thus, all the interlocutory applications aforesaid are hereby allowed. CWJC No. 12553 of 2003 has been filed challenging the gradation list contained in memo no. 313 dated 21.04.1999 prepared by the Special Director, Secondary Education, Government of Bihar on the ground that the petitioner claims that he is senior to the respondents who have been placed higher in the gradation list. The petitioner has also made a prayer that 4 he may be considered for promotion in the Bihar Education Service Class-II with effect from 02.12.1994. The post of Class-II was advertised and the names of certain persons were recommended which has been challenged by the petitioner by filing I.A. NO. 1121 of 2006 The dispute relates to appointments in the Madarsa Islamia Shamsul Huda, Patna (hereinafter referred to as „the Madarsa‟) which is a Government institution, run and controlled by the Bihar State Government Education Department. In the Madarsa, there are two branches, Junior Section and the Senior Section. In the Junior Section, there are 10 posts of Assistant Maulavis and 2 posts of Assistant Maulavis. Out of the 10 posts of Assistant Maulavis, 7 posts are of Subordinate Education Service and 3 posts are of Lower Subordinate Education Service LSE). Out of the 02 posts of Assistant Teachers, 1 post is of Subordinate Education Service and 1 post is of Lower Subordinate Education Service. In the Senior Section, 6 posts are of Assistant Maulavis of Bihar Education Service Class-II and 2 posts are of Assistant Teachers in Bihar Education Service Class-II (BSE). It is stated in the writ application that the posts of Assistant Maulavis were in different scales and were in different services as well, which has been 5 described as follows:- DESIGNATION SCALE SERVICE Assistant Maulavi 240-396 Lower Subordinate service L.S.E.) Assistant Maulavi 386-600 Subordinate Education Service (S.E.S.) Assistant Maulavi 415-745 Subordinate Education Service (S.E.S.) Senior Branch An advertisement was issued on 20.08.1978 for appointment on the post of Assistant Maulavis in the Lower Subordinate Education Service (L.S.E.) in the pay scale of Rs. 240-396/-. Another advertisement was issued on 29.09.1978 inviting persons to apply for the posts of Assistant Maulavis in the Subordinate Education Service (S.E.S.) in the pay scale of Rs. 386-600/-. It is pleaded on behalf of the petitioner that the pay scale of Assistant Maulavis of Subordinate Education Service was later revised to Rs. 417-745/-. The petitioner and one Abid Hussain applied against the said advertisement issued in the month of September, 1978. By the order of the Director, Secondary Education, the petitioner was appointed as an Assistant Maulavi in the S.E.S., whereas Md. Abid Hussain and Md. Alauddin (the intervenor- respondents) were appointed in the pay scale of Rs. 240- 6 396/-. It has also been pleaded that Md. Taslim was appointed in L.S.E. in the pay scale of Rs. 240-396 and he joined the said post on 18.10.1975. Later on, Md. Taslim was promoted in the pay scale of S.E.S. i.e. Rs. 415-745 in the month of November, 1979. Md. Mokhtar Ahsan was appointed in L.S.E. in the pay scale of Rs. 240-396/- and was later on promoted to the S.E.S. in the pay scale of Rs. 415-745. The petitioner has given details with respect to Md. Taslim and Md. Mokhtar Ahsan to demonstrate to this Court that earlier persons who were appointed in L.S.E. were promoted in the higher pay scale of S.E.S. The petitioner objected to the tentative gradation list, which was prepared by the Special Director, Secondary Education. According to the petitioner, he had filed objections which were forwarded to the Special Director. The petitioner Sadre Alam objects on two counts; firstly it is the contention of the petitioner that he had higher qualification then what was mentioned in the gradation list inasmuch as he had the additional qualification FAZIL in Halin, Farsi Fiqh Tafsir and was M.A. in Farsi. The second objection was that he had been placed junior to several persons. He was promoted to Assistant Maulvi vide memo no. 705 dated 02.12.1994. One person who was similary situated to the 7 petitioner moved this Court vide CWJC No. 11338 of 1994, for quashing memo no. 338 dated 31.05.1989 and the memo no. 7088 dated 02.12.1994 whereby juniors to Khwaja Abdul Bari as also the petitioner has been made senior in the gradation list. The gradation list was finalized in the year 1999. It would be proper to refer to the judgment which is contained in Annexure-15. Khwaja Abdul Bari, the writ petitioner of CWJC No. 11338 of 1994 had challenged the letter of the Special Director, Secondary Education by which he had rejected the claim of Khwaja Abdul Bari. The contention of the writ petitioner was that these two posts were never merged. Two questions have been answered in the writ application, firstly whether the L.S.S. and the S.E.S. merged and secondly, as to whether the respondents 5 to 8 were senior to the writ petitioner? This Court has held in the case of Khwaja Abdul Bari vs. The State of Bihar & Others by order dated 03.10.1997 passed in CWJC No. 11338 of 1994 that merely because Assistant Maulavi who had requisite qualification of Fazil were promoted to the pay scale of Rs. 387-600/-, it would not tantamount to merger of L.S.S. with the senior branch of S.E.S. On the basis of the aforesaid finding, the Court held that respondents 5 to 8 could not claim seniority over the writ petitioner. For all practical 8 purposes, this is the law as laid down by this Court wherein it has been clearly stated that there were no merger of the posts. As far as the prayer of the petitioner Sadre Alam with respect to the challenge of the gradation list is concerned, it has come on record that the petitioner retired during the pendency of this writ application and as such, no order need be passed with respect to changing the position of the petitioner in the gradation list. Apart from which, the gradation list was finalized in the year 1999 and the writ application was filed after 5 years challenging the gradation list, which is unwarranted as it suffers from delay and latches. The tentative gradation list was prepared in the year 1989, which was challenged by Khwaja Abdul Bari. Finally, the Special Director, Secondary Education directed the Principal to prepare a fresh gradation list in accordance with the directions given in CWJC No. 11338 of 1994. The name of Khwaja Abdul Bari was upgraded. The only question that has to be decided in the facts of this case is that whether the petitioner would be entitled to promotion to S.E.S. Class-II posts on the basis of Rule 4 (1) and (ii) of the statutory rules. The petitioner has also challenged Annexure-2 which is the advertisement issued for appointment of 9 Assistant Maulvi in S.E.S. Class-II. 140 candidates applied for the post out of which 113 candidates were issued admit cards and finally 40 candidates were selected to join the post of Assistant Maulavi. Subsequent to the issuance of appointment letters, amendment has been made in the writ application challenging the appointments of the intervenor- respondents Syed Masood Ahmand, Md. Aftab Alam and Md. Kalim Akhtar, who were appointed in the Madarsa. Rest of the candidates were posted else where. The petitioner claims that the advertisement itself was wrongly issued and the appointments made are in contravention to the rules made which are printed in the Bihar Education Code and are known as Bihar Education Code (Class-I) and Bihar Education Code (Class-II) Recruitment Rules for appointment and promotion in Class-I and II. The factual aspect is that there are six posts of Assistant Maulavi in the senior section of the Madarsa. The said posts are to be filled up by direct recruitment as well as by promotion. It has been stated that three posts have been filled up by way of promotion in the year 1994 and 1999 and as such, three posts are to be filled up by direct recruitment. The controversy arose between the parties as the petitioner relies on sub-rule 3 of rule 4 for the 10 purposes of submitting that the promotion have to be made in the ratio of 80 : 20. 80 per cent are to be filled up by way of promotion and 20 per cent by direct recruitment, whereas, intervenors claimed that the appointments would have to be made as per sub-rule 2 of rule 4 of the said rules. It would be proper to quote rule 4 of the aforesaid rules. “4. Fixation of vacancies :- (1) The Governor shall decide in accordance with these rules in each year the number of vacancies in each of the services to be filled in that year by direct recruitment, by open advertisement, through special recruitment and/or by promotion respectively. Provided that vacancies in the Bihar Educational Services Class I in any one year excepting those specified in Appendix D shall not be filled by direct recruitment unless the Governor is satisfied that suitably qualified and experienced officers are not available for promotion. When a vacancy in the Bihar Educational Service Class I specified in Appendix D occurs the Governor shall consider whether the best candidates for the post will be available by promotion from amongst those working in the institute(s)/organisation(s) concerned or by direct recruitment and decide whether the post shall be filled up by promotion or direct 11 recruitment. (2) Appointments to the posts of District superintendent of Education, Sub-Divisional Education Officer, Principal, Primary Teahcer‟s Education College, District Inspectress of Schools and allied posts of inspecting and administrative nature shall be made as follows :- (i) By direct recruitment in accordance with the rules in Part II in 30 % of posts (ii) By open advertisement in accordance with the rules in Part III In 50 % of the posts (iii) By promotion of officers of the Upper division of the Subordinate Educational Service (inspection and allied branch) in accordance with the rules in Part IV in 50 % of the posts (3) Appointment to the posts of Principal of Government High Schools, including Sarvodaya Schools (both for male and female) shall be made as follows :- (i) By promotion of officers of Upper Division of the In 80 % of the 12 subordinate Education Service (Teaching Branch), in accordance with the rules in Part IV posts (ii) By open advertisement in accordance with the rules in Part III In 20 % of the posts (4) Appointment to the posts of Subject Teachers in the Training Colleges, Government College of Health and physical Education, Institutes of Science, Education and English, Director, Professors and Lecturers, Research Fellows in the various Research Institutes, Research cum Teaching Institutes such as Nalanda Mahavihara, Institute of Prakrit and Jainology, K. P. Jaiswal Institute, Mithila Sanskrit Research Institute, Rashtra Bhasha Parishad, Sanskrit College, Madrasa Islamia Shamsul Huda, Reformatory School and Pilot Centre for Juvenile Delinquents shall be made by open advertisement in accordance with the rules in Part II. Provided that where suitably and fully qualified and experienced candidates in the desired subjects are available to fill the vacancy by promotion, their cases for promotion will also be considered. The names of any institute of similar type may be included in this group 13 from time to time by the orders of the Governor published in the official gazette.(5) Where it is not possible to wait for direct appointment to take place by following the normal procedure and circumstances so justified, recruitment to the posts of Bihar Educational Service Class I or Class II may be made in accordance with the provisions contained in Part V of these rules.” From the perusal of the aforesaid rules, it would appear that appointments have to be made by promotion of Officers of upper division of the S.E.S. It is apparent that the Class-II posts will be filled up in the manner prescribed in accordance with the provisions of (i), (ii), (iii) of sub-clause 2 for the post appertaining to appointment of District Superintendent of Education, Sub Divisional Education Officer, Principal, Primary Teacher Education College, District Inspectors of Schools and allied posts of inspecting and administrative nature. In accordance with the rules, posts will be filled up by direct recruitment in accordance with the Part-II whereas upon advertisement in accordance with Part-III to the extent of 50 per cent posts and by promotion of Officers of the upper division of S.E.S. in accordance with Part-IV. The argument raised on behalf of the respondents is that the appointment is based on sub-clause 3 of clause 4 by which the petitioners‟ Counsel emphasis that the posts of 14 Principal of Government High Schools including Sarvodaya Schools by giving promotion to the extent of 80 per cent of the posts and by open advertisement to the extent of 20 per cent of the total number of posts. It has been argued that the number of Government High Schools includes Assistant Teachers and as such the petitioner would be entitled to be considered for the S.E.S. Class-II as 80 per cent posts are to be filled up by way of promotion. Counsel for the petitioner appears to have lost sight of the fact that rule specifically speaks that appointment to the post of subject teacher in the Colleges/Schools mentioned in the rules and specifically the Madarsa, would be made by open advertisement in accordance with the rules of Part-II. As such, it cannot be argued that the appointment of the petitioner by open advertisement was bad on the ground that the 80 per cent of the posts should have been reserved for the teachers of the said School, who would be entitled for promotion to the higher posts. The Madarsa is recognized by the State Government. However, the management lies in the hands of the Managing Committee who is the appointing authority as far as the petitioner and the respondents are concerned, although the mode of entry in the said Institute has been prescribed by the State 15 Government. Another fact which may be taken into account is that the petitioner had not applied against the advertisement contained in Annexure-2 and as such he cannot challenge the appointment of the respondents. Therefore, I find no illegality in the appointment of the intervenors-respondents in this case and the claim of the petitioner is thus rejected. CWJC Nos. 12563 of 2003 has been filed by Md. Aslam Hussain challenging the appointment of the three intervenors as Assistant Maulavi in S.E.S. Class-II on the same ground as that of the petitioner Sadre Alam. This writ application is thus dismissed for the reasons as stated above. CWJC Nos. 10679 of 2004 and 11966 of 2003 have been filed by Md. Zafar Siddique and Md. Alauddin. These petitioners have challenged the appointment of respondents 9 to 11 without making them party, which has its obvious fall outs. These two petitioners claim promotion in accordance with the recruitment rules of 1973. These two petitioners were appointed in the Junior Section of the Madarsa in L.E.S. In the Junior Section, there are two branches, one is the L.E.S. and the other is the S.E.S., these two grades have not been merged as would be 16 apparent from the order of this Court in the case of Khwaja Abdul Bari (supra). The petitioners have not been promoted to the S.E.S. and as such they cannot be considered for promotion to the higher post of B.E.S. Class-II. The case of these petitioners can only be considered after they have been promoted to the S.E.S. They would be at liberty to apply as and when there are vacancies occurs, if they have the required qualification. In CWJC No. 2959 0f 2004, the petitioner has prayed that he should be promoted to B.S. Class II cadre, by virtue of being the senior most teacher of the school. His case and consideration will have to be made independently The case of this petitioner would need to be considered by the authorities concerned as and when the vacancy arises. In the result, the writ application of Sadre Alam being CWJC No. 12553 of 2003 is dismissed and the other four writ applications are disposed of with the aforesaid observations and directions. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 26th AUGUST, 2011 N.A.F.R./ANAND