IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C No.9719 OF 2007 MD.SAHID ANSARI----------------(Petitioner) Versus THE STATE OF BIHAR & ORS------(Respondents) ----------- For The Petitioner : Mr. Alamdar Hussain, Advocate. For The Respondent : Mr. H.P Singh (GA6) P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (08.04.2011) Mihir Kumar Jha,J. Heard Mr. Alamdar Hussain, learned counsel for the petitioner and counsel for the State. 2. The prayer made in this writ application reads as follows:- “ A writ in the nature of mandamus or any other appropriate writ/order or direction directing the respondents to appoint the petitioner on compassionate ground due to death of his father in harness. A writ in the nature of mandamus or any other appropriate writ/order or direction directing the district compassionate Committee, Jehanabad to consider the case of the petitioner for appointment on compassionate ground.” 3. Mr. Hussain, learned counsel for the petitioner would submit that the father of the petitioner was appointed as a clerk in Dr. Zahir Ahsan High School, 2 Dhodha, Gaya (Now Jehanabad)(hereinafter referred to as the school) by its Managing Committee of the school and since, the aforesaid school is a recognized minority declared and aided school by the State Government which made his father to also receive monthly salary from the grant in aid released by the State Government, the petitioner on account of death of his father in harness would be entitled for his being considered for compassionate appointment in any capacity in the said school. The grievance of the petitioner in this regard is that despite filing of his application for compassionate appointment, the District Compassionate Appointment Committee of Jehanabad has not taken a decision and as such he was left with no other alternative but to move this Court for a direction to the Respondents for his appointment on compassionate ground. 4. In this context, the main plank of submission of Mr. Hussain is based on a Government resolution no. 237 dated 20.02.1990 contained in Annexure-6 3 to the writ application which according to him would also entitle the petitioner for appointment on compassionate ground in recognized minority aided school . 5. Learned counsel for the State with the help of the counter affidavit filed by him would submit that the Government resolution dated 05.10.1991, laying down the policy of compassionate appointment is meant only for Government servants and their dependents and since, the father of the petitioner was not a Government servant, the petitioner cannot claim appointment on compassionate ground. In this regard, he has also placed reliance on the communication of the Deputy Director of Secondary Education, Human Resources Development Department dated 03.04.2008, wherein it has been held that there is no provision for appointment on compassionate ground in a recognized minority aided school and any appointment in such recognized minority aided school can be made only by the Managing Committee of the school in which the offices of the State Government cannot play any role. 4 6. On the basis of the aforementioned rival contentions, the first issue would be as to whether a direction can be issued by this Court for considering the case of appointment of the petitioner on compassionate ground in a recognized minority aided school? As would be clear from the policy of the Government dated 05.10.1991, it is exclusively meant for Government servants and their dependents. Admittedly the father of the petitioner was not a Government servant and when in the writ application, it has also been clearly admitted by the petitioner himself that the father of the petitioner was appointed by the Managing Committee of the school on 28.09.1977, it becomes more than clear that the Government or its officials including the District Compassionate Appointment Committee will have no role to play in facilitating much less appointing the petitioner on compassionate ground in the aforementioned recognized minority aided school. 7. If the said Government policy 5 dated 05.10.1991, in fact is carefully examined, it would be self evident that it applies only to the Government servant, inasmuch as, it has been provided therein that:- lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks oxZ &3 ,oa 4 ds inksa ij vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kA funs'kkuqlkj dguk gS fd vc rd lsokdky esa fdlh ljdkjh lsod dh e`R;q gksus ij e`r ljdkjh lsod ds vkfJrksa dks oxZ &3 ,oa oxZ &4 ds inksa ij fu;qfDr gsrq dkfeZd,oa iz'kklfud lq/kkj foHkkx }kjk fuxZr lHkh vuqns'kksa dks voØfer djrs gq, ljdkj us ;g fu.kZ; fy;k gS fd vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kvksa dks bl izdkj ljy ,oa izHkkodkjh cuk;k tk;s fd ljdkjh lsod ds e`R;ksijkUr mlds vkfJr dks fcuk foyEc ds oxZ &3 ds dfri; inksa vFkok oxZ 4 ds inksa ij fu;qfDr fey ldsA bl mn~ns'; ls ljdkj us fuEukafdr fu.kZ; fy;k gS& ¼1½ fdudk p;u gks ldrk gS & ¼d½ vuqdEik ds vk/kkj ij fu;qfDr dk ykHk oSls e`r ljdkjh lsod ds ,d gh vkfJr dks vuqekU; gksxk ftudh e`R;q lsokdky esa gqbZ gSA ¼[k½ bl gsrq ljdkjh lsod mls gh ekuk tk;sxk ftldh fu;qfDr] Lohd`r in ds fo:) fof/kor dh xbZ gksA ¼x½ lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks gh vuqdEik ds vk/kkj ij fu;qfDr dh tk ldrh gSA vkfJr ds vurxZr dsoy iq=] vfookfgr iq=h rFkk iq= dh fo/kok iRuh lfEefyr jgsxhA nÙkd iq=] nkekn] Hkrhtk vkfn dks vkfJr ugha ekuk tk;sxkA ¼?k½ vuqdEik ds vk/kkj ij fuEufyf[kr izkFkfedrkvksa ds vuqlkj muds vkfJr dh fu;qfDr dh tk;sxhA ¼i½ e`r lsod dh iRuh ¼ii½ iq= ¼iii½ vfookfgr iq=h ¼iv½ iq= dh fo/kok iRuh ¼M-½ ;fn ifr iRuh nksuks ljdkjh lsok esa gks vkSj fdlh ,d dh e`R;q gks tk;s rks oSlh fLFkfr esa vuqdEik ds vk/kkj ij fu;qfDr dk ykHk muds ifjokj ds fdlh vkfJr dks ugha feysxkA ¼p½ ;fn dksbZ efgyk ljdkjh lsok esa gks vkSj muds ifr fdlh ljdkjh lsok esa dk;Zjr ugha gksa] rks efgyk ljdkjh lsod dh e`R;q mijkUr muds ifr dks vuqdEik ds vk/kkj ij fu;qfDr dk ykHk izkIr gks ldsxkA (underling for emphasis) 8. Thus it be comes clear from the government policy of compassionate appointment that it is applicable only for the dependents of a government servant and when the father of the 6 petitioner was admitted an employee of a private school governed and administered by its Managing Committee and thus not a government servant, there would be no question of his appointment on compassionate ground at least in terms of the government policy dated 5.10.1991. 9. True it is that the said Government policy was also sought to be enforced in certain other kinds institutions, inasmuch as, in paragraph no. 11 of the same circular dated 5.10.1991 it has been provided that:- ¼11½ bl ifji= dh izHkko lhek & ;g ifji= jkT; ljdkj ds v/khuLFk lHkh yksd miØeksa] Lo'kklh fudk;ksa] izkf/kdkjksa] fuxeksa] i"kZnksa rFkk jkT; lEiksf"kr laLFkkvksa ij Hkh iw.kZ:i ls ykxw le>k tk;sxkA 10. It is however, not in doubt that a recognized minority aided school will not fall in the category of any of the aforementioned specified institutions inasmuch as such a recognized minority aided school is neither a public undertaking nor an autonomous body, authority Corporation or Board nor even a state subsidized institution. A State subsidized institution infact is only such institution in which the State Government has to meet the entire cost of 7 expenditure of its establishment including payment of salary to the teaching and non-teaching staff whereas in a recognized minority aided school only grant in aid for specific purpose confined to payment of salary and other emoluments of its teaching and non- teaching employees has been extended from the funds of the State Government. In the State of Bihar there are only a few State subsidized Institution including K.P. Jayaswal Institute or A.N. Sinha Institute. The private Sanskrit Schools, Madarsa and the minority schools though recognized by the Government do not fall in the category of State Subsidized Institutions. Thus on the basis of the aforementioned analysis, it can be safely held that the Government policy for appointment on compassionate ground cannot be enforced in the recognized minority aided school where the father of the petitioner was working before dying in harness. 11. It has also to be kept in mind that such recognized minority aided school, even when it receives grant in 8 aid for payment of salary it does not cease to have its own autonomy and identity in the matter of appointment and/or removal of service of its teaching and non teaching employees. As a matter of fact in all the recognized minority aided schools the power of appointment in keeping with the requirement under Article 29 and 30 of the Constitution of India has always remained vested in the Managing Committee of the school and merely because the Vidyalaya Sewa Board and the Government and/or its officials have been vested with limited power of approving the services of such teaching employees within the sanctioned number of posts for such school in terms of Section 18 of Bihar Non-Governmental Taking over management and Central Act 1981 would not mean that the Government and/or its officials can also appoint any employee in the said school. The rights guaranteed under Article-29 and 30 of the Constitution of India vests complete autonomy in the minority institution and the same cannot be in any way interfered and abrograted by the Government and/or 9 its officers inasmuch the same would be in teeth of provisions made under Article-30 of the Constitution of India. Thus any and every appointment including an appointment on compassionate ground in a recognized minority aided school can only be made by the Managing Committee/Governing Body of the school in which the Government can have no say and consequently the prayer of the petitioner for direction from this Court to the respondent officials of the State Government for directing them to appoint the petitioner on compassionate ground must be held to be wholly misconceived both on fact and in law. 12. In this regard it is equally important to note here that the Government policy of compassionate appointment in the Circular dated 5.10.1991 in its clause no. 4 also clarifies that such appointment letter on compassionate ground has to be issued by the appointing authority of the deceased employee as would be evidenced from its following extracts:- ^^vkosnu i= dk leiZ.k vkSj layXu fd;s tkus okys dkxtkr&vkosnu gsrq fuEukafdr dkxtkr mlh dk;kZy; esa tgka e`r ljdkjh lsods vafre le; esa dk;Zjr Fks] nkf[ky 10 djus gksaxsA ¼d½ vuqdEik ds vk/kkj ij fu;qfDr gsrq vkosnu fofgr izi= esa ftldk uewuk vuqyXud&1 esa miyC/k gSA ¼[k½ vkonsu i= ds [k.M&2 esa mYysf[kr lHkh fcUnqvksa ij vuq'kalk inkf/kdkjh dh vuq'kalk ¼uewuk vuqyXud&1 esa½ ¼x½ eqR;q izek.k i=A ¼?k½ 'kS{kf.kd ;ksX;rk laca/kh izek.k i=A ¼M-½ vk;q laca/kh izek.k i=A ¼p½ tkfr izek.k i= ¼dsoy vkjf{kr oxZ ds mEehnokj ds fy,½A mijksDr ¼x½ ls ¼?k½ rd ds lHkh dkxtkrksa dh ewy izfr;ksa ,oa ,d ,d QksVks LVsV izfr;ka layXu djuk vfuok;Z gksxkA tgka ij e`r ljdkjh lsod vafre le; esa dk;Zjr Fks] ml dk;kZy; ds iz/kku dks vuq'kalk inkf/kdkjh dgk tk;sxkA os gh vuqyXud&1 ¼[kaM&2½ esa fofgr izi= ds dzekad&7 dks gLrk{kfjr djsaxsA** Thus if the whole policy contained in government Circular dated 5.10.1991 is read along with the prescribed proforma in Enclosure-I and its various columns, there would be hardly any scope to hold that despite the appointing authority on any teaching/non-teaching post in recognized minority aided school being only its Managing Committee, any direction can be issued to the officers of the State Government including the Respondents to this writ petition for appointing the petitioner on compassionate ground. 13. The added emphasis of the learned counsel for the petitioner on the Government resolution dated 20.02.1990(Annexure-6) in this regard also appears to be wholly misplaced. The 11 subject of such resolution being itself as clear as a day will leave nothing for speculation that it was only issued for giving some financial benefits to the teaching and non teaching employees of the recognized minority aided school, as had been extended to the teachers in the Government schools. The text of the said resolution in fact reads as follows:- ^^jkT; ds ekU;rk izkIr xSj ljdkjh vYila[;d izkFkfed@e/;@ek/;fed fo|ky;ksa izLohd`r laLd`r fo|ky;ks ,oa izLohd`r enjlk ds f'k{kd@f'k{kdsRrj deZpkfj;ksa dh rjg osru HkRrk ,oa vU; foRrh; lqfo/kk;sa iznku djus ds lEcU/k esaA jkT; ds izkFkfed@e/;@ek/;fed vYila[;d fo|ky;ks izLohd`r laLd`r fo|ky;ksa ,oa enjlksa ds f'k{kd ,oa f'k{kdsRrj deZpkfj;ksa dks ljdkjh f'k{kdksa dh Hkkafr osru ds vfrfjDr vU; lqfo/kk,a iznku djus dh ekax vkrh jgh gSA bu fo|ky;ksa ,oa enjlksa esa dk;Zjr f'k{kd@f'k{kdsRrj deZpkfj;ksa dks osru ds vfrfjDr nh tk jgh eagxkbZ HkRrk] fpfdRlk HkRrk] vkokl HkRrk] uxj {kfr iwfrZ HkRrk vkfn dh lqfo/kk;sa esa ,d:irk ugha gSA tgka ek/;fed vYila[;d fo|ky;ksa ds f'k{kd ,oa f'k{kdsRrj deZpkfj;ksa dks ljdkjh f'k{kdksa dh Hkkafr eagxkbZ HkRrk Lohd`r fd;k tk jgk gS ogha izLohd`r laLd`r fo}ky;ksa ds f'k{kdksa ,oa f'k{kdsRrj deZpkfj;ksa dks osru ds vfrfjDr dsoy 13 ¼rsjg½ fdLr ,oa enjlksa dks iw.kZ eagxkbZ HkRrk izkIr gks jgk gSA ijUrq vkokl HkRrk] fpfdRlk HkRrk] uxj {kfriwfrZ HkRrk ugha fey jgk gS 2- fofHkUu vYila[;d fo|ky;ksa izLohd`r laLd`r enjlksa ds f'k{kd@f'k{kdsRrj deZpkfj;ksa dks leku :I ls lqfo/kk;sa miyC/k djkus dk iz'u jkT; ljdkj ds fopkjk/khu FkhA ljdkj }kjk bl ij iw.kZ:is.k fopkjksijkar fu.kZ; fy;k x;k gS fd jkT; ds xSj ljdkjh ekU;rk izkIr vYila[;d izkjafHkd] e/; ,oa ek/;fed fo|ky;ksa rFkk izLohdqr xSj ljdkjh laLd`r fo|ky;ksa ,oa enjlksa ds f'k{kd ,oa f'k{kdsRrj deZpkfj;ksa dks osru ds vfrfjDr ;s lHkh lqfo/kk;sa nh tk;a tks ljdkjh fo|ky;kas ds f'k{kd ,oa f'k{kdsRrj deZpkfj;ksa dks miyC/k gS ,oa le; le; ij oks jkT; ljdkj }kjk miyC/k djk;h tk;sA** 14. Thus a bare reading of the subject of the aforementioned resolution dated 20.02.1990, would therefore, leave 12 nothing for speculation that it was only meant for extending same and similar financial benefits of dearness allowance. House rent allowance, medical allowance and city compensatory allowance in addition to salary and emoluments as being paid to the teaching and non- teaching employees of the Government school. The appointment on compassionate ground however is not contemplated under aforesaid resolution of the State Government dated 20.2.1990. As a matter of fact, the full text of the Government resolution dated 20.02.1990 already quoted above will itself make it clear that the expression 'We sabhi suvidhayen ¼os lHkh lqfo/kk;sa½ in paragraph no. 2, is meant only with regard to also extending the benefit of Dearness allowance, House Rent Allowance, Medical Allowance and City Compensatory Allowance as being paid to the employees of the Government school. The resolution dated 20.02.1990, in no view of the matter can be read much less construed to mean that the Government policy for appointment on compassionate ground issued by the Personnel 13 Adminstrative Rules Department dated 05.10.1991 was also sought to be extended to the recognized minority aided school by the aforesaid Resolution dated 20.2.1990. As noted above the power of appointment and removal in a recognized minority aided school is exclusively in the hands of the Managing Committee that has not been sought taken away in any manner by virtue of the Government resolution dated 20.02.1990. 15. In that view of the matter, the stand taken by learned counsel for the State relying on the communication of Deputy Director of Secondary Education, Human Resources Development Department dated 03.04.2008, (Annexure-B) reading as follows:- mi;qZDr fo"k;d vkids i=kad 601 fnukad 6-3-08 ds laca/k esa lwfpr djuk gS fd vYi la[;d mPp fo|ky;ksa esa vuqdEik ds vk/kkj ij fu;qfDr djus dk izko/kku ugha gSA lkekU; izfdz;k ds vUrxZr fu;ekuqlkj fu;qfDr djus gsrq fo|ky; ds izca/k lfefr l{ke gSA** would itself show that the scheme of compassionate appointment of the Government is not meant for recognized minority aided schools. It is infact the Managing Committee which alone can appoint its teaching and non-teaching 14 employees on any ground including compassionate ground and in such exercise of appointment in minority schools, the Government and/or its officials cannot do anything and even the limited supervisory power with regard to approval of service of such teaching and non teaching employees of recognized minority aided school appointed by its Managing Committee and that too only for payment of salary would by no stretch of imagination would make the State Government and/or its officials the appointing authority of teaching and non- teaching employees of the recognized minority aided school. 16. The matter can be examined even from another angle, inasmuch as, there is no dispute that the school in question is a private school and not a ‘State’ within the meaning of Article-12. The power of appointment of teaching and non-teaching employees in such private school including a minority declared school exclusively lies in the Managing Committee which is not a ‘State’ within the meaning of Article-12 of the 15 constitution of India. This Court therefore, cannot issue direction to such privately managed school nor the Managing Committee of such private school can be directed to appoint the petitioner on compassionate ground. This aspect of the matter was gone into by this court in the case of Sanjay Sharad vs The State of Bihar and ors, relating to another recognized minority aided high school, namely Dayanand High School, Mithapur in C.W.J.C NO.9828 of 2008, wherein this Court by its order dated 06.05.2009 had held as follows:- “In the light of aforesaid submissions of the counsel for the parties the first and foremost question would be as to whether this writ application against an order passed by the Managing Committee of a private and minority declared school is maintainable? Dr. Jha, in order to satisfy this court on the preliminary objection with regard to maintainability of the writ application would straightway place his reliance on a judgment of Apex Court in the case of Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh & Ors. reported in 1984 (Supplementary) SCC 540. In the opinion of this Court, the reliance placed on the said judgment is wholly misplaced because therein there was a provision for a tribunal against the decision of the Managing Committee and the decision which was taken by the 16 Deputy Commissioner and the Commissioner exercising power under Section 3 of 1969 Act in respect of the aided school was held to be those of the tribunal. It was in that context the Apex Court had held the writ application to be maintainable as the impugned order was passed by the tribunal. One would fail to understand as to how the said judgment would be of any avail for the facts of the present case wherein a unanimous decision of the Managing Committee of a minority school as communicated through its Secretary is being assailed in a writ application. It is true that the Secretary of the Managing Committee at that point of time was the District Education Officer but nonetheless that decision still would be one of the Managing Committee, which by itself is not an authority much less a „State‟ within the meaning of Article 12 of the Constitution of India. Obviously, the ratio of Manmohan Singh Jaitla case (supra) can not be made applicable to the facts of the present case. Dr. Jha next referred to the judgment of the Apex Court in the case of O.P. Gupta Vs. Union of India & Ors. reported in 1987(4) SCC 328. In the opinion of this Court, the reliance placed on the said judgment seems to be wholly misplaced, inasmuch as, that was the case of an Assistant Engineer in Central Public Works Department who was placed under suspension pending departmental enquiry and was eventually retired compulsorily. Thus, the said judgment in the case of O.P. Gupta (supra) is not an authority that the decision of the Managing Committee is amenable to writ jurisdiction. Dr. Jha then placed his 17 reliance on the judgment of Apex Court in the case of Francis John Vs. Director of Education & Ors. reported in 1989 (Supplementary) (2) SCC 598. In the opinion of this Court, the ratio laid down by the Apex Court in the case of Francis John (supra) will also be of no assistance to the petitioner, inasmuch as, what was held therein was that a writ application against an order of a Government Officer acting under administrative instruction in terms of Rule 74.2 of the Grant-in-aid Code was maintainable. There can be no difficulty in accepting this proposition that if the ultimate decision was taken by the Government or its officer either in terms of statute or even circular, such decision would no longer remain decision of the Managing Committee of the institution and as such, the writ jurisdiction against an order of the Government officer would be maintainable. Here, there is no such statute prescribing the District Education Officer to be the Secretary of the Managing Committee rather than District Education Officer is one of the members of the Managing Committee of a minority school being the Government representative. Such Managing Committee in fact is comprising of different members and in that view of the matter, merely because at that point of time the District Education Officer was made the Secretary of the Managing Committee and had issued the impugned order in terms of the unanimous decision of the Managing Committee, will not make the decision of the Managing Committee one taken by a Government Officer. It is this aspect of the matter which would make the writ application of the 18 petitioner absolutely distinct and different from one which was decided by the Apex Court in the case of Francis John (supra). As a matter of fact, this aspect of the matter that a writ application against a decision of the Managing Committee is not maintainable stands settled by a Division Bench Judgment of this Court in the case of Chandra Nath Thakur Vs. Bihar The Bihar Sanskrti Shiksha Board & Ors. reported in 1999(1) PLJR 529 wherein this Court after considering the decision of the Apex Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors. reported in AIR 1989 SC 1607 and K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu College of Engineering and Anr. reported in 1998 SC 295 had held the teacher of privately managing school even though financially aided by the State Government or a Board cannot maintain the writ application against an order of termination from service passed by the Managing Committee. The Division Bench of this Court for this purpose had relied on the judgment of Apex Court in the case of Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain reported in AIR 1976 SC 888 as also in the case of Dipak Kumar Biswas Vs. Director of Public Instruction & Ors. reported in AIR 1987 SC 1422. The aforesaid view of the Division Bench in the case of Chandra Nath Thakur (supra) has been again reiterated by yet another division bench in the case of Trigun Chandra Thakur Vs. State of Bihar and others, in L.P.A. No. 670 of 1999, disposed of on 21.1.2008. The law, therefore, having been settled by two Division Bench judgments of this Court on 19 this score, it must be held that the writ petition assailing the impugned order passed by the Managing Committee of a minority school is not maintainable in the writ jurisdiction of this Court under Article 226 of the Constitution of India. As a matter of fact, the termination of service of the petitioner cannot even otherwise be faulted with because the specific stand taken by the respondents in their counter affidavit that at the time of appointment of the petitioner, he was lacking training qualification and as such, was not qualified in terms of the eligibility for holding the post of teacher in a minority school, has not been disputed by filing any rejoinder affidavit. The petitioner has only come out to say that after two years of his appointment, he is said to have become