IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.669 OF 2007. ABHYA CHANDRA, SON OF SRI RAM CHANDRA PRASAD YADAV, RESIDENT OF MOHALLA-CHOTI KESHOPUR, TARGACHH KALI ASTHAN NO.2 KE PICHHE, P.O./P.S. JAMALPUR, DISTRICT MUNGER. AT PRESENT WORKING AS ASSISTANT TEACHER IN BHARATI ARYA HIGH SCHOOL, JAMALPUR AT/P.O./P.S. IN THE DISTRICT OF MUNGER. ...........PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, HUMAN RESOURCE DEVELOPMENT, BIHAR, PATNA. 2. DIRECTOR, SECONDARY EDUCATION BIHAR, PATNA. 3. REGIONAL DEPUTY DIRECTOR OF EDUCATION, MUNGER DIVISION, MUNGER. 4. DISTRICT EDUCATION OFFICER, MUNGER. 5. RAM CHANDRA PD. YADAV, SECRETARY MANAGING COMMITTEE, AT/P.O./P.S. IN THE DISTRICT OF MUNGER. 6. KUMAR ARUN, I/C HEADMASTER BHARTI ARYA HIGH SCHOOL, AT/P.O./P.S. JAMALPUR, DISTRICT MUNGER. .............RESPONDENTS -------------- 05/ 09.08.2011 Having heard Dr. M.P Shukla, learned counsel for the petitioner, Mr. S.K Jha, A.C to G.A 10, learned counsel for the State, and Mr. Brisketu Sharan Pandey, learned counsel for respondent no. 6 as with regard to the following relief:- “1.This is an application for directing to respondents to make payment of his salary etc as Assistant teacher, Bharati Arya High School, Jamalpur, Munger with effect from 01.07.2003 since approval of his services had already been accorded by Karamchari Chayan Ayog with the letter no. 1385(A) dated 29.11.05 and directed the District Education Officer, Munger by at least six letters addressed to the I/C Headmaster to submit bills for 2 the payment of the petitioners salary etc and also a letter addressed to the Director Secondary Education, Bihar with his letter no. 1395 dated 23.11.06 to take action against the I/C Headmaster.” this Court would find that a writ of mandamus could be issued for directing the respondents to make payment of salary of the petitioner only if such approval given by Bihar Staff Selection Commission, the successor body of the Vidayalaya Sewa Board was in accordance with law. It is not in doubt that the petitioner claims to have been appointed in the minority School namely Bharati Arya High School, Jamalpur, Munger hereinafter referred to as the school. Appointment of teachers in such minority schools are to be governed by the provision of Section 18 of Bihar Non Government Secondary Schools (Management and Take over control) Act 1981 which reads as follows:- 18- vYila[;d ek/;fed fo|ky;ksa dh ekU;rk& ¼1½ fcgkj ek/;fed f”k{kk cksMZ vf/kfu;e] 1976 ¼fcgkj vf/kfu;e 25] 1976½ ,oa fcgkj ek/;fed f”k{kk cksMZ ¼f}rh; la”kks/ku½ v/;kns”k] 1980 ¼fcgkj v/;kns”k 82] 1980½ ds micU/kksa ds v/khu ?kksf’kr vYila[;d ek/;fed fo|ky; bl vf/kfu;e ds mica/kuksa ds v/khu ekU;rkizkIr vYila[;d ek/;fed fo|ky; ekus tk;saxs A ¼2½ jkT; ljdkj vf/klwpuk }kjk ,sls ek/;fed fo|ky;] ftldh LFkkiuk /keZ vFkok Hkk’kk ij vk/kkfjr vYila[;d oxZ }kjk vius oxZ dh “kSf{kd vko”;drkvksa dh iwfrZ ,oa laLd`fr dh j{kk ds fy, dh xbZ gks vkSj tks ekU;rk dh fofgr “krsZa iwjh djrk gks] dks vYila[;d ek/;fed fo|ky;ksa ds :i esa ekU;rk ns ldsxh A ¼3½ mi;qZDr mi&/kkjk ¼1½ ,oa ¼2½ ds v/khu ekU;rkizkIr 3 vYila[;d ek/;fed fo|ky; fuEukafdr micU/kksa ds v/khu lapkfyr ,oa fu;fU+=r gksaxsa%& ¼d½ izR;sd vYila[;d ek/;fed fo|ky; ds fy, ,d izcU/k lfefr gksxh] tks lkslk;Vht jftLVªs”ku ,sDV] 1860 ds v/khu ,d fucfU/kr laLFkk gksxh rFkk ftlds xBu ,oa lapkyu dk ,d fyf[kr fo/kku gksxk A 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 tk¡p 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 gksxk A ¼x½ vYila[;d ek/;fed fo|ky;ksa ds f”k{kdksa ,oa f”k{kdsŸkj 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{kdsŸkj deZpkjh }kjk izcU/k lfefr ds fu.kZ; ds fo:) vihy djus rFkk mlds ekeys ij iqufoZyksdu djus dk izko/kku gh jgsxk ftldh izfr jkT; ljdkj dks Hksth tk;sxh A 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:) dh x;h vuq”kklfud dkjZokbZ dk vuqeksnu djrs le; cksMZ dsoy bl ckr dh tk¡p dj ldsxk fd naM dh ek=k fu/kkZfjr djus ds iwoZ mDr iz;kstukFkZ cukbZ xbZ 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+sxk A ¼M-½ “kkjhfjd ,oa ekufld :i ls v{ke O;fDr dh fu;qfDr f”k{kd ;k f”k{kdsŸkj deZpkjh ds :i esa ugha dh tk;xh A ¼p½ 58 o’kZ ls vf/kd vk;q okys fdlh f”k{kd ;k f”k{kdsŸkj 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{kdsŸkj deZpkjh ds osru vkfn ds Hkqxrku ds fy, dksbZ vuqnku ns; ugha gksxk A ¼N½ vYila[;d ek/;fed fo|ky;ksa }kjk Nk=ksa ls os gh “kqYd fy, tk;saxs tks jkT; ljdkj }kjk fofgr gS A 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 jgsxk A 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] 4 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 dŸkZO; gksxk A 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 gksxk A 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 vkns”k 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 It is not in doubt that such schools already declared as minority school have their specific restrictions by way of condition for payment of salary to its teaching and non teaching employees within the sanctioned staffing pattern that they should appoint only trained teachers in the School. Additionally, such minority Schools though have a power to make appointment through its own Managing Committee but as the teachers get the payment of salary from the Government fund, the appointment have to be made only after publishing the advertisement in newspaper having wide circulation and participation of the candidates. when the petitioner came to be 5 appointed on 24.06.2003, there was no advertisement made in any widely circulated newspaper and the report of the Secretary of the School to the District Education Officer dated 13.02.2010 as contained in Annexure (E) series to the counter affidavit of respondent no. 4, District Education Officer, Munger will expose the manner in which the petitioner was illegally appointed by his father the self- proclaimed Secretary in the year 2003. To that extent it would be found that the appointment made by his father Ram Chandra Yadav was not only illegal but was a direct attempt to embezzle the Government fund by claiming payment of salary for such appointment of his son. Admittedly, the petitioner was not a trained hand or the requirement under the Seva Shart Niyamavali, the service conditions made by State Government for teachers of nationalized Secondary Schools on 06.06.1983 is that the person who is sought appointment on the post of teacher should be a trained hand and therefore the petitioner’s appointment on 24.06.2003 was 6 void ab initio especially when the post was also allegedly advertised in a newspaper called Freedom Fighter having no circulation in town of Jamalpur. Approval of such appointment by the Vidalaya Sewa Board or its successor body i.e Bihar Karamchari Chayan Aayog( Bihar Staff Selection Commission) was wholly impermissible and Mr. Shambhu Nath Sinha, the Secretary of Bihar Karamchari Chayan Aayog( Bihar Staff Selection Commission) seems to be equally responsible in approving altogether an illegal appointment of the petitioner. It has to be noted that in the order dated 29.11.2005, the Secretary to the Staff Selection Commission had referred to the amended 2004 Rules notified by the State Government on 12.10.2004, but it would be really a matter of concern to note that a person appointed on 24.06.2003 was sought to be given protection on a rule made on 12.10.2004 when as a matter of fact it had also no retrospective operation. Thus whatever meets the eye gives a clear indication that there was a well 7 hatched conspiracy to defraud Government exchequer in making appointment of the petitioner by his father and its recommendation by the District Education Officer, Munger to Bihar Karmachari Seva Ayog as also in giving approval by the Chairman and the members of the Bihar Karamchari Chayan Aayog (Bihar Staff Selection Commission) including Mr. Shambhu Nath, Secretary to the Commission. There would be thus no question of payment of salary to the petitioner on the basis of the aforementioned fraudulent facts especially when the District Education Officer, vide its letter no. 495 dated 10.04.2004 had already communicated to the Secretary /Incharge Headmaster of the aforementioned minority High School that not only the appointment of the petitioner was illegal but the same was contrary to the Government circular and as such the same could not have been recognized by the State Government. Once this letter dated 10.04.2004 was already issued by the District Education Officer, it would be really a matter of concern 8 that on what basis the Bihar Karamchari Chayan Aayog (Bihar Staff Selection Commission) had gone to record the approval of the appointment of the petitioner on the basis of which this writ petition has been filed for claiming payment of salary. Be that as it may, since, the Managing Committee of the School represented by respondent no. 6 has taken a specific stand that the petitioner no longer continues in the School after the order of the District Education Officer dated 18.04.2004, any effort on the part of the petitioner to legitimize the illegal appointment made by his father even on the basis of wholly illegal order of the Bihar Karamchari Chayan Aayog (Bihar Staff Selection Commission) cannot lead to the desired relief of payment of salary from the Government fund, inasmuch as, the petitioner did not have the requisite qualification for the post of assistant teacher in the subject of English in minority high School. That being so, this writ application as with regard to the relief sought in 9 paragraph no. 1 quoted above must be held to be wholly misconceived and is accordingly dismissed. Before parting with this Court having found that there was a dubious design and a well hatched conspiracy between the petitioner, his father, acting as so called Secretary of the High School and District Education Officer who had come in the Office after Smt. Maya Rani Pal as also the Chairman and members of the Bihar Karamchari Chayan Aayog (Bihar Staff Selection Commission) who were responsible in giving approval of the services of the petitioner an enquiry should be conducted by the Director Secondary Education and if he finds that erring persons including the petitioner and his father had made attempt to defraud money from government exchequer steps should also be taken for lodging a First Information Report. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)