IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.5401 OF 2007 SHAKILA BANO, W/O SRI MD. MASOOD, R/O MOH. GOLA BAZAAR, SIWAN, P.S SADAR, DIST. SIWAN. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 3.THE STAFF SELECTION COMMISSION THROUGH ITS SECRETARY, VETERINARY COLLEGE, PATNA. 4.THE DISTRICT EDUCATION OFFICER, SIWAN. 5.THE MANAGING COMMITTEE OF DAUD MEMORIAL URDU GIRLS HIGH SCHOOL, ‘NISHAT AFZA’, SIWAN, PS & DISTRICT SIWAN THROUGH ITS SECRETARY. ………………………RESPONDENTS. For the petitioner: Mr. Tej Bahadur Singh, Sr. Adv and Mr. Sayed Hussain Majeed. For B.S.S.C(respondent no. 3):Mr. Vipin Kumar, Adv. For the State: Dharmendra Kumar singh, A.C to G.P. V. ----------- 03/ 12.09.2011 Heard Mr. Tej Bahadur Singh, learned senior counsel for the petitioner, learned counsel for the State as also learned counsel for the Bihar Staff Selection Commission. The petitioner in this writ application has assailed the order dated 11.01.2007, passed by the Secretary of the Staff Selection Commission, whereby and whereunder the proposal for approval of the services of the petitioner has been rejected on the ground of lack of requisite qualification at the time of her initial appointment as also her such 2 appointment being made without notifying the vacancy in largely circulated newspaper all over the State. The facts which are not in dispute and would be sufficient for disposal of this writ application lies in a narrow compass. The petitioner was appointed in pursuance of an advertisement made by the Managing Committee of the Daud Memorial Urdu Girls High School, Siwan ( hereinafter referred to as the School) on 30.07.1983. The petitioner had submitted her application for appointment on the post of Assistant Teacher in Hindi. The petitioner thereafter having undergone the selection process in the said School which is a minority School declared by the State Government was appointed on 21.08.1983. It is to be noted that at the time of her initial appointment she was an untrained teacher but then subsequently she had passed B.Ed examination from Kanpur University in November 1985 and after she had acquired training qualification, the Controlling Authority of the State Government and the local Field Officer of Education Department had recognized the 3 services of the petitioner for the purposes of her payment of salary which was also made to her from 23rd November, 1985, the date on which she had passed her training examination upto October 1999. The case of the petitioner, however, was also sent for approval to the Vidyalaya Sewa Board in terms of Section 18 of Bihar Arajakiya Madhyamik Vidyalaya (Prabandh and Niyantran Grahan) Adhiniyam 1981(Bihar Adhiniyam Sankhya 33 of 1982 (hereinafter referred to as the Act) but the Vidyalaya Sewa Board after keeping the matter pending for a long spell of time did not take any final decision where it was left for Staff Selection Commission, the successor body of the Vidyalaya Sewa Board to take its final decision in the matter of approval of the services of the petitioner. The Vidyalaya Sewa Board by the impugned order dated 11.01.2007, in its communication to the District Education Officer, Siwan had rejected the matter relating to approval of the petitioner on the following ground:- mlh fon~;ky; dh Jherh 'kdhyk okuks dks fu;qfDr fgUnh fo"k; f”{kd ds in ij fnukad 01-10-83 ls izHkko ls dh x;h fdUrq mUgksaus ch0 ,M0 4 dh ;ksX;rk fnukad 26-11-85 ls izkIr dh A bl izdkj os ml le; ch0 ,M0 dh ;ksX;rk /kkfjr ugha djrh Fkh blds vykok lacaf/kr fon~;ky; ,d rRlacaf/kr LFkkuh; nSfud izdk”u laokn esa izdkf”kr fd;k x;k Fkk] tks fuf'pr :i ls jkT; esa izpfyr v[kckj ugha gS A fQj izoa/k dkfj.kh lfefr dh cSBd dh dk;Zokgh ds voyksdu ls ;g Kkr ugha gksrk gS fd bl le; fgUnh f”{kd dk ;ksX;@izf”f{kr mEehnokj vuqiyO/k Fkk A vr% lHkh rF;ksa ,oa ifjfLFkfr;ksa ij fopkj djus ds ckn vk;ksx }kjk mudh fu;qfDr ds vuqeksnu dk izLrko loZlEefr ls vLohd`r fd;k tkrk gS A It is this order which has been assailed in the present writ application. Mr. Tej Bahadur Singh, learned senior counsel for the petitioner would submit that both the reasons given for rejecting the case of approval of the services of the petitioner are unsustainable. In this regard, he has submitted that when it is an admitted fact that the petitioner had become a trained hand on 26.11.1985, the decision under the impugned order taken in the year 2007 i.e., after 22 years of the petitioner’s acquiring qualification of training and in fact after 24 years of her being continued in service in the school would be wholly arbitrary. He has further explained that the requirement of advertising the vacancy of the post of Assistant Teacher in a minority School in a newspaper widely circulated all over the State being not prescribed by the State Government 5 as on the date of appointment of the petitioner, the Commission could not have rejected the case for approval of appointment of the petitioner at least on the ground of absence of advertisement in a widely circulated newspaper. In this context, he has relied on the judgment of the Apex Court in the case of Ram Sarup vs The State of Haryana and Ors, reported in AIR 1978 SC 1536 as also on two unreported judgments of this Court in the case of Sarla Rohilla vs The State of Bihar & Ors (L.P.A NO. 494 of 2002), disposed of on 27.01.2003, as also the order of the learned Single Judge in the case of Md. Minhajuddin vs The State of Bihar & Ors (C.W.J.C NO.6109 of 2008) disposed of on 14.09.2004. Learned counsel for the Staff Selection Commission on the other hand has submitted that when the petitioner was initially appointed in the year 1983, she did not possess the qualification of teachers training and as such her appointment made by the Managing Committee of the minority School was in teeth of 1983 Service Conditions framed by 6 the State Government for appointment of teachers in the nationalized taken over Schools. He has further submitted that it is the requirement under the Government Rules framed for the appointment of teachers in the taken over nationalised high schools that the post of teachers have to be advertised in the widely circulated newspaper all over the State. He therefore, has supported the decision taken by the Commission by labeling the petitioner’s initial appointment to be void ab initio. In the considered opinion of this Court, there can be no two view in law that the Managing Committee of minority institution in order to receive financial aid for payment of salary of its teachers will have to abide by the Government’s regulatory norms as envisaged under Section-18 of the Act. Section-18 of the Act definitely prescribes norms for appointment of teachers in minority Schools by the Managing Committee of such school but the teachers of such school in order to receive payment of salary from the fund of the State Government must not be only 7 within prescribed sanctioned strength of the teachers as per the Government norms but are also required to possess the essential qualification as also laid down for the appointment of teachers in the nationalised taken over high Schools. The crucial question, however, would still be as to what was the qualification laid down for the post of teacher in nationalised high school by the State Government as on 21.08.1983, when the petitioner came to be appointed by the Managing Committee of the recognized minority School. The repealed reference to the Sewa Shart Niyamawali notified by the State Government for taken over Schools dated 09.06.1983 would not be sufficient, inasmuch as, the said Sewa Shart Niyamawali was to come into force w.e.f. the date of its being published in the official gazette. There is no dispute that such Sewa Shart Niyamawali was published in the official gazette on 26th September, 1983 and therefore, the appointment of the petitioner having been made a month earlier before the enforcement of Sewa Shart Niyamawali, there would be no 8 difficulty in holding that the appointment of the petitioner without her being a trained hand was not in teeth of any Rule or Government Circular meant for appointment of the teachers of the nationalized high Schools. There is also no dispute that for the first time after take over of such nationalized taken over Schools w.e.f 02.10.1980, the qualification and the manner of appointment of teachers in such schools came to be prescribed by Sewa Shart Niyamawali framed in the June 1983 which actually came into operation on 26.09.1983. Thus the first reason given by the Commission for rejecting the approval of the services of the petitioner itself becomes non- applicable at least in the case of the petitioner. There is another aspect of the matter inasmuch as even if the qualification of being a trained hand for appointment in the Government recognised minority School is held to be necessary and thus also applicable on the date of appointment of the petitioner, she having already acquired qualification in the year 1985 w.e.f., 23.11.1985 when her result 9 was declared by the Kanpur University, had no longer remained unqualified teacher so as to be removed from service after her continuation for a period of more than 24 years. The petitioner having become a trained hand in the year 1985 her service was also recognized by the official of State of Bihar including the District Education Officer, Siwan who had also released the payment of salary to the petitioner from 23.11.1985 and which continued up to the year 1999. In that view of the matter, the lack of qualification for rejecting the case of approval of the service of the petitioner in the year 2007, by which time she had already worked as a trained teacher for 22 years would be a real travesty of justice. It is this aspect of the matter, which was considered in the case of Ram Sarup (supra), where the Apex Court having noticed that the petitioner Ram Sarup was not qualified for appointment on the post of Labour cum Conciliation Officer on the date of his appointment but had later on acquired such qualification had held as follows:- “3.The question then arises as to what was the effect of breach of Cl. (1) or R.4 of the Rules. Did it have 10 the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularized as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years’ experience of the working of labour laws in any one of the three capacities mentioned in Cl. (1) of R.4 or in any higher capacity, his appointment must be regarded as having been regularized. The appellant worked as Labour-cum- Conciliation Officer from 1st Jan., 1968 and that being a post higher than that of Labour Inspector or Deputy Chief Inspector of shops or Wage Inspector, the experience gained by him in the working of Labour laws in the post of Labour-cum-Conciliation Officer must be regarded as sufficient to constitute fulfillment of the requirement of five years’ experience provided in Cl. (1) of R.4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant was, therefore, clearly illegal and it must be set aside. 4.We accordingly allow the appeal, set aside the judgment of the Division Bench as well as of the Single 11 Judge of the High Court and quash the order of reversion passed against the appellant reverting him from the post of Labour-cum-Conciliation Officer to that of Statistical Officer. We further make it clear that the appointment of the appellant as Labour-cum- Conciliation Officer must be deemed to have become regular and he must be deemed to have been appointed to that post only on the expiry of a period of five years calculated from the date when he was appointed Chief Inspector of Shops. There will be no order as to costs of the appeal.” Thus the ratio laid down by the Apex Court in the case of Ram Swaroop (supra) would by itself be sufficient answer to the first proposition as with regard to denial of approval of service of the petitioner on the ground of her being not a trained hand. As a matter of fact, the ratio laid down in the Division Bench judgment in the case of Sarla Rohilla (supra) following the law laid down by the Apex Court in the case of Miss Shainda Hasan vs The State of Uttar Pradesh, reported in AIR 1990 SCC 1381 and in case of Dr. M.S Mudhoi vs S.D Halegkar, 1993 (3) SCC 591, will also go in favour of the petitioner, inasmuch as, the Division Bench relying on the aforementioned two judgments of the Apex Court had held that once a teacher in a minority 12 School had continued for a period of 12 years, it would be wholly inequitable and unadvisable to disturb the petitioner from the post of a teacher. The second reason as with regard to the approval of the services of the petitioner by the Commission can also not be accepted much less approved by this Court, inasmuch as, when there was no Rule framed by the State Government laying down any norms for appointment of teachers in the taken over nationalized Schools requiring the publication of advertisement in widely circulated newspaper, the approval of the appointment of the petitioner could not be rejected on that ground. This Court while considering a similar issue in the case of Mary Murmu & Ors vs The State of Bihar & Ors,(C.W.J.C NO. 3804 of 2007) disposed of on 23.08.2011 has held that in terms of Section-18(3)(Kh) read with Section-18 (3)(Ga)and 18(3)(jha) of the Act, the Rules referred to for the appointment of the teachers in a minority School cannot be the Rules framed by the State Government but only the Rules framed by the Managing 13 Committee. In any event as on 21.08.1983 when the petitioner was appointed as a teacher in the school on the post of teacher there was no Rule framed either by the State Government in force nor any Rule to the contrary framed by the Managing committee was in vogue which required publication of the advertisement for the post of teacher of a minority school in a widely circulated newspaper all over the State. It has to be also taken into account that the Managing Committee while seeking approval of the services of the petitioner had reported to the Vidyalaya Sewa Board as also to the Commission for the post of teacher in question was advertised locally in the newspaper on 30.07.1983 and its copy were also sent to the office of the Collector, District Education Officer, Sub-divisional Educational Officer and District Employment Officer where they were also pasted on the notice board. The specific statement in paragraph no. 5 and 6 in the writ application to the aforesaid effect have not been controverted either by the respondent State or even by the Secretary of 14 the Bihar Staff Selection Commission in their respective counter affidavit. In that view of the matter, this Court must hold that the Managing Committee had circulated the vacancy by issuing advertisement and inviting application for the post in question on which the petitioner was appointed. The petitioner in fact during the pendency of this writ application has also superannuated from service w.e.f., 31.10.2010 and therefore, for her, the only importance of approval of her services will be payment of her salary from November 1999 till the date of her retirement i.e., 31.10.2010, inasmuch as, such payment had been kept pending awaiting the approval of the Vidyalaya Sewa Board/Staff Selection Commission. Considering all these aspects, this Court would quash the impugned order and direct the Director of Secondary Education to issue the formal order for approval of the services of the petitioner, inasmuch as, now the power of approval of the appointment of the teachers of the minority Schools has been withdrawn from Staff Selection Commission and 15 entrusted to the Director of Secondary Education itself. The Director of Secondary Education will do the needful for according approval of the service of the petitioner in the light of the observations and direction made above so that the resultant steps for payment of salary to the petitioner is also taken within a period of three months from the date of passing of the order of the Director of Secondary Education who also must ensure that such order of approval of the services of the petitioner is issued by him within a period of two months from the date of receipt/production of a copy of this order. This whole exercise therefore, as indicated above must come to an end within a time frame of six months from today. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)