CIVIL WRIT JURISDICTION CASE No.9787 OF 1997 In the matter of an application under Article 226 of the Constitution of India. MADAN MOHAN SINGH, Son of Late Munshi Singh, resident of Village- Laukariya, Police Station- Palanawa, District- East Champaran, at present Assistant Teacher in S.R.P. N. High School, Bajpatti in the District of Sitamarhi (Bihar) --------- Petitioner Versus 1. THE STATE OF BIHAR. 2. The Director (Secondary Education)-Cum-Special Secretary, Bihar Secondary Education Office, Amrapali Bhawan, Baiely Road, Patna-1. 3. The District Education Officer, Muzaffarpur. 4. The District Education Officer, Sitamarhi. For The Petitioner :Mr. Tej Bahadur Singh, Sr. Adv. Mr. Binod Bihari Singh, Adv. Mr. Gyan Shankar, Adv. Mr. Brajesh Kumar, Adv. For The Respondent :(GP5) For The State :Ms. Nutan Sharma, J.C. to G.P. 15 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. The petitioner is claiming that this Court should issue a direction directing the respondent-Director, Secondary Education to grant the scale of M.Sc. trained to the petitioner. The petitioner was appointed by the Bihar Vidyalaya Sewa Board as Assistant Teacher in S.R.P.N. High School, Bejapatti in the district of Sitamarhi on 24.3.1967. After the appointment of the petitioner in the said school, the Government came out with a resolution no. 891 dated 24th March, 1967 agreeing to increase the number of posts by providing two trained teachers holding the post graduate Honours degree in high school one of which was to be a teacher of Science and the other was to be teacher 2 of Humanities, Arts, Commerce or Languages in the school in question there were no teacher holding post graduate degree. After the petitioner was appointed by the Bihar Vidyalaya Sewa Board, the petitioner began to file a representation praying therein that he should be allowed to hold the post of post graduate M.Sc. as the post was vacant in the said school. The claim of the petitioner is that since each school was treated as a separate entity and unit he was entitled to be considered by the Bihar Vidyalaya Sewa Board for appointment for the post of M.Sc. teacher. 2. In the year 1978, i.e. on 1.4.1978, the scale of post graduate teachers, assistant head masters, head masters was merged and all of them had the same scale of pay. The petitioner’s representation remained pending and no action was taken by the authorities concerned to give the petitioner the required promotion. 3. Learned counsel for the petitioner submits that a recommendation was made by the District Education Officer to the Secretary, Madhyamik Shiksha Board on 13.4.1978 noting therein that the petitioner was the only person who had the required qualification to hold the post in 3 question. Similarly the District Education Officer issued letter dated 6.7.1978 recommending the petitioner’s case for consideration to be appointed on the M.Sc. graduate vacant post in the said school. At the relevant time as stated earlier that each of the schools was treated as single unit. 4. The representation of the petitioner and the recommendations made by the authorities remained undisposed and unanswered and as such in the year 1996, the petitioner filed a writ application before this Court and the Court directed the concerned authority to pass an appropriate order with respect to the petitioner’s case which was finally passed vide memo no. 518 dated 29.4.1997 rejecting the claim of the petitioner. 5. The aforesaid order contained in annexure-7 dated 29.4.1978 is under challenge before this Court on various grounds. 6. The Director, Secondary Education has considered the fact that the petitioner was appointed in 1967 against the vacancy of teacher holding graduate trained qualification. It also appears that the petitioner was transferred on 4 16.10.1979 to Gopal Sah High School, Motihari. The reason for rejecting the claim of the petitioner is that his case would be covered under the Bihar Rajkiyakrit Madhyamik Vidyalaya (conditions of service) Rules, 1983. In the impugned order it has been stated that the petitioner’s case would come under Rule 5 v Sub Clause 3 [k. The note on which the Director has relied upon relates to teachers who have been appointed by the Vidyalaya Sewa Board or Madhyamik Sewa Board on one hand, and teachers appointed by the Managing Committee of the Schools on the other. According to the note the teachers appointed by the Managing Committee on the post of M.A. trained teacher would not be entitled to be treated as a teacher of M.A. trained although, they may draw the pay scale of M.A. trained. 7. In my view the application of this Rule would not apply in the case of the petitioner as the petitioner is yet to get the benefit of the M.A. trained post. Further it has been submitted that the Rule itself has been held to be ultra vires, in view of a judgment of this Court passed in Shashi Bhushan Sahai & Ors. Vs. The State of Bihar & Ors. reported in 1996(1) P.L.J.R. 95. According to the judgment, the teachers appointed 5 by the Bihar Vidyalaya Sewa Board and the Managing Committee had to be treated alike and there can be no discrimination on the ground that some of the teachers have been appointed by the Managing Committee. In fact, the entire impugned order deals with the fact as to what would be the consequences and the manner of granting promotion from graduate trained to post graduate trained teachers. 8. The main question before the authority was to consider whether the petitioner was entitled to be considered for the post of M.Sc. trained in view of the fact that till 1980, the schools were considered to be a separate unit. There appears to be recommendation of the Headmaster and the District Education Officer to the Bihar Vidyalaya Sewa Board (which has now been superseded by the Staff Selection Commission). Nonetheless the facts do indicate that if he was found to be a suitable candidate by the Head Master and the District Education Officer they ordinarily should not have been any impediment in appointing him as M.Sc. trained teacher in the school aforesaid. 9. In view of my observations, I direct the Director, Secondary Education to examine the 6 matter and if he finds that the petitioner has been duly recommended by the Head Master and the District Education Officer to hold the post of M.Sc. trained teacher. Then appointment and benefits should be given to him forthwith. The Director should examine the matter within a period of three months from the date of receipt/production of a copy of this order. The Director, Secondary Education should also give the petitioner proper place in the gradation list, and grant selection grade etc. according to his seniority in service. 10. The order dated 29.4.1997 is quashed. The writ application is disposed of with the aforesaid observations and directions. 11. No order as to costs. Patna High Court, 15th December, 2008 N.A.F.R./Sanjay (Sheema Ali Khan, J.)