IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11147 of 2008 KHURSHEED AHMAD, S/O GHOLAM SANDANI, R/O VILLAGE-JAMNAWAN, P.S.-WARSLIGANJ, DISTRICT- NAWADA, ASSISTANT TEACHER, PHYSICAL TRAINED TEACHER, ISLAMIYA HIGH SCHOOL SHEIKHPURA, DISTRICT-SHEIKHPURA. ………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 3. DIRECTOR, SECONDARY EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 4. DEPUTY DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 5. THE DISTRICT EDUCATION OFFICER, SHEIKHPURA. 6. BIHAR STAFF SELECTION COMMISSION, THROUGH ITS CHAIRMAN, BIHAR, PATNA. 7. THE SECRETARY, STAFF SELECTIOIN COMMISSION, BIHAR, PATNA. ……………RESPONDENTS. ----------- For the Petitioner :Mr.Tej Bahadur Singh, Sr.Adv., Mr.Gyan Shankar, Adv. and Mr.Brisketa Sharan Pandey, Adv. For the State :Mr.Krishna Kant Singh, AC to GP-V. For the Commissioin:Mr.S.S.Sundaram, Adv. ------------ 3 19.08.2010 Petitioner has filed this writ application for quashing of order dated 07.05.2008 passed by the Director, Secondary Education by which rejection of his claim for payment of salary has been communicated to the Deputy Director, Secondary Education vide memo no. 599 dated 29.05.2008, as contained in Annexure-6. Further prayer has been made for direction to the respondents to make payment of his salary due since December, 2 2000 and pay his current salary also. As per the case of the petitioner, against advertisement dated 9.9.1986 issued by the Management of the Minority Institution, he applied for his appointment on the post of Geography Teacher. The advertisement, a copy whereof is contained in Annexure-12, shows that school needed a Geography Teacher with qualification of Graduation (Hons.) or Post Graduation and should be Trained or Physical Trained. Petitioner was having a qualification of Post Graduation in Geography and was also having a qualification of Physical Training. Hence finding himself as having requisite qualification as per advertisement, he applied for the post and was selected. Consequently, appointment letter dated 27.10.1986, as contained in Annexure-1, was issued to him by the Secretary. In the appointment letter, it was mentioned that, he was being appointed as an Assistant Teacher on the prescribed Government pay scale on temporary basis. In the appointment letter, it was not mentioned that as to whether he was being appointed as against substantive 3 post of Geography Teacher or against the post of Physical Teacher. After joining, he continued in the school and was paid salary till November, 2000. During this period, the matter of approval of his services was referred to Vidyalaya Sewa Board. Since the matter remained pending with the Board, the Management of the School stopped his salary from December, 2000. Ultimately, the Vidyalaya Sewa Board by a communication addressed to the D.E.O., Sheikhpura dated 06.05.2004, as contained in Annexure-A to the counter affidavit, communicated rejection of approval of his services. It is a stand of the petitioner that this communication never came to his knowledge and was never received by him from any source. Since his salary had been stopped by the Management, the petitioner moved this Court earlier through CWJC No.6660 of 2003. The said writ application was disposed of in a batch vide order dated 28.05.2007, as contained in Annexure-5, with a direction to the concerned authorities to consider the cases of the concerned petitioners and pass appropriate orders in respect of their claims 4 for payment of salary. In this manner, the matter came up for fresh consideration by the Director, Secondary Education. The Director, Secondary Education considered the case of the petitioner, vide Annexure-6, found that the case of the petitioner had already been rejected by the Vidyalaya Sewa Board which stands dissolved and, therefore, it was not possible to issue orders for payment of salary. In the circumstances, he directed the D.E.O., Sheikhpura to examine the case of the petitioner in the light of the said decision of the Vidyalaya Sewa Board and pass appropriate orders within one month. It is contended by learned senior counsel for the petitioner that in compliance to the said order of the Director, the D.E.O. has not examined the matter and has not passed final orders. It is also contended that after receipt of the said order of the Director, the Secretary of the School has submitted a detailed report, vide Annexure-13 dated 30.08.2009, clarifying the position that the petitioner was appointed on the post of Physical Teacher and was working in the School since last 22 years and his services 5 have been found satisfactory. He submits that this report of the Secretary has also not been considered by the D.E.O., Sheikhpura for taking a decision in terms of the said orders of the Director dated 7.5.2008. On merits, learned senior counsel for the petitioner submits that the advertisement itself shows that the Management intended to appoint a Geography Teacher who could also function as Physical Teacher in the School. For that reason, the alternative to qualification of Training in Education, Physical Trained was also provided in the advertisement itself. Petitioner did fulfill the qualification as he was Post Graduate in Geography and was having qualification of Physical Training also. He submits that this specific stipulation in the advertisement providing for alternative certificate of training has not been taken into consideration by the authorities. He also submits that the appointment letter of the petitioner did not mention that he was being appointed to function as Geography Teacher or Physical Teacher. This shows that the management intended the petitioner to function in dual 6 capacity in the School in the light of the requirements of the School. He submits that the rejection letter of the Vidyalaya Sewa Board, which has now been annexed as Annexure-A to the counter affidavit of the State authorities, shows that the case of the petitioner was rejected only on the ground that he was not having qualification of Training in Education and the Physical Training does not come in the category of Training in Education. He submits that the Vidyalaya Sewa Board completely overlooked that the Management of the School itself had provided an alternative qualification in the advertisement itself. He also submits that the Director while considering the case of the petitioner had simply proceeded on the basis of rejection of his case by the Vidyalaya Sewa Board by the said letter dated 06.05.2004 and has not applied his independent mind. Learned counsel for the State authorities as well as learned counsel for the Commission submit that the petitioner’s case could not be considered against substantive post of Physical Teacher as the 7 said post was never advertised. His case was also not considered against the post of Geography as the Physical Training qualification was not equal to qualification of Training in Education. Therefore, they submit that the case of the petitioner was rightly rejected by the Vidyalaya Sewa Board. Learned counsel for the petitioner, in reply, refers to a letter of the Government no. 6066 dated 24.11.1986, to contend that the Physical Trained Teachers have been held equal with teachers having B.Ed qualification. After hearing the learned counsel for the parties, and after going through the materials available on record, this Court is of the view that the overall aspect of the matter has not been considered by the Vidyalaya Sewa Board while rejecting the case of the petitioner for approval of his services. It appears that true nature and import of the advertisement was not considered by the Vidyalaya Sewa Board. It also appears that the letter no. 6066 dated 24.11.1986, issued under the signature of Director, Secondary Education, also requires 8 consideration. Besides, now that the management of the school has submitted a further report, vide Annexure-13, the same also requires consideration. Reliance has been placed by learned senior counsel for the petitioner upon a Division Bench judgment of this Court, as contained in Annexure-10, in which, on account of long functioning of the teacher in the school, this Court found it fit not to interfere with his services. In the present case also the petitioner was appointed in 1996 and has continued for 14 years till November, 2000 and only thereafter his salary was stopped. It is the case of the petitioner that he is still continues in the school with the express approval of the Management of the School, but without any payment. These matters are require to be considered in its totality. In the circumstances, this Court disposes of the writ application by remitting the matter to the Staff Selection Commission, which has now stepped into the shoes of Vidyalaya Sewa Board, for reconsideration of the case of the petitioner for approval of his services in accordance with law. The 9 Commission shall consider the case of the petitioner taking an overall view of the matter as indicated above, without being prejudiced or swayed away by the said order of the Director, as contained in Annexure-6, or earlier decision of the Vidyalaya Sewa Board, as contained in Annexure-A. The decision in this regard must be taken by the Commission within three months from the date of receipt/production of a copy of this order. Arvind/ ( J. N. Singh, J.)