IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15373 of 2001 1. LALAN KUMAR SINGH, s/o Sri Brahmdeo Prasad Singh, r/o Village- Benigir, P.S. Muffasil Munger, District- Munger. 2. Rupawati Kumari, w/o Ajay Kumar Sharma, r/o Mohalla- Makhsurpur, P S. Kasim Bazar, Munger, District- Munger. … Petitioners. Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education, Government of Bihar, Bikas Bhawan, Patna. 3. The Deputy Director, Primary and Adult Education, Govt. of Bihar, New Secretariat, Patna. 4. The District Superintendent of Education, Munger, District- Munger. 5. The Managing Committee of Sri Durga Sanstha Madhya Vidyalaya, Betwat Bazar, Munger District- Munger through its Secretary. .. Respondents. For the petitioners : Mr. Rajendra Prasad Singh, Sr. Adv. For the State : S. C. IX P R E S E N T HON’BLE Mr. JUSTICE MIHIR KUMAR JHA O R D E R ---------------- ( 06.07.2010) ----------- Mihir Kumar Jha, J. Heard Mr. Rajendra Prasad Singh, learned senior counsel for the petitioners and learned counsel for the State. The prayer of the two petitioners made in this writ petition reads as follows:- “1. That this is an application through which the petitioners creave indulgency of this Hon’ble Court for issuance of an appropriate writ(s) order(s) direction (s) to quash the letter-8/3-291/98 1504 dated 27.8.2001 issued under signature of Deputy Director, Primary Education, Government of Bihar, Patna (respondent no. 2 3) whereby and whereunder the Deputy Director, Primary Education, Government of Bihar (respondent no. 3) has written/directed the District Superintendent of Education, Munger (respondent no. 6) that vide departmental letter no. 709 dated 4.9.93 the appointment of untrained teacher is not valid. So, it has been directed in the light of above said letter that to direct the Managing Committee for cancellation of appointment of untrained teacher and further to regularize the service of the petitioner as Assistant Teacher on the sanctioned and vacant posts in the Durga Sanstha Middle School Berawa Bazar, Munger (hereinafter referred as to the School) with all service benefits from the date of their respective appointment/joining and further to direct the respondents authorities not to disturb the petitioners from working as Assistant Teacher in the school and pay salary regularly. The respondents may be directed to pay salary regularly including back salary from this class of joining and further to grant any other consequential relief(s) for which petitioners may found entitled to.” Mr. Singh with regard to the aforementioned prayer would submit that while it is well within the discretion of the State to extend aid to a non- governmental institution but then it would not be open for the officials of the State Government to also lay down the terms and conditions for appointment of teachers in such private school only receiving financial aid from the State. He has accordingly assailed the impugned order refusing to recognize the services of the 3 petitioners. From the reading of the impugned order it would be clear that after the Managing Committee of Durga Sanstha Madhya Vidyalaya, Munger (hereinafter referred to as the “school”) had made appointment of the petitioners on the post of teacher by imposing a clear condition that their payment of salary will not be made by the Managing Committee and the same would squarely depend on grant being made by the State. A request thereafter was also made by the Managing Committee of the School to the D.S.E., Munger for approval of service and consequential release of fund for payment of salary to the two petitioners and the District Superintendent of Education had wholeheartedly and favourably recommended the matter to the Directorate by his letter dated 6.5.1998. According to Mr. Singh when the D.S.E., Munger had recommended for grant of such approval of appointment of the petitioners, the Directorate by its impugned order dated 27.8.2001 could not have held that the service of untrained teachers even in an aided private school was impossible and could not be approved. The respondents have filed a counter affidavit 4 and while supporting the reasons in the impugned order have also enclosed a copy of Government resolution dated 4.3.1993 relevant portion whereof reads as follows: Þi=kad&9@o3&0418@92 ek0 709] fnukad 4-3-1993 Jh jkenso flag] ljdkj ds milfpo] fcgkj lHkh ftyk f'k{kk v/kh{kd fo"k; % xSj&ljdkjh lgk;rk izkIr ¼vYi la[;d lfgr½ izkjafHkd fo|ky; ds f'k{kdksa dk lsok vuqeksnuA mi;ZqDr foi; ij funsZ'kkuqlkj e>s dguk gS fd xSj ljdkjh lgk;rk izkIr ¼vYila[;d lfgr) fo|ky;ks ds uofu;qDr f’k{kdkas dh lsok vuqeksnu esa dfri; dfBukbZ;ka mRiUu gks jgh gSA ftys ds izrh{kd lwph lekIr gks tkus ds QyLo:i u;s f'k{kdksa dh cgkyh ,oa iqjkus f'k{kdksa ds lsok fuo`fRr vkfn ls gq, fjDr inksas dks Hkjus esa dkQh dfBukbZ gks jgh FkhA bl izfdz;k dks ljy cukus ds fy, jkT; ljdkj us fu.kZ; fy;k gS fd bu fo|ky;ksa ds fjDr inksa dks Hkjus gsrq fuEukafdr izfdz;k viuk;h tk,A ¼1½ fo|ky; izca/k lfefr ds }kjk fjDr inksa dks foKkfir djkdj dsoy izf’kf{kr mEehnokjksa ls vkosnu i= izkIr fd;k tk,A ¼2½ lfefr esa fo|ky; ds fu;a=h inkf/kdkjh ;k fu{ks=h; f'k{kk inkf/kdkjh@iz[kaM f'k{kk izlkj inkf/kdkjh dks f'k{kk foHkkx ds izfrfuf/k ds :i esa vo'; j[kk tk,A ¼3½ es/kk lwph rS;kj dh tk, rFkk ojh;rk ds dze ls gh fu;qfDr dh tk,A ¼4½ fu;qfDr ds le; vkj{k.k fu;eksa dk Hkh vuqikyu fd;k tk,A fu;qfDr f'k{kdksa dks lsok vuqeksnu ds laca/k esa foHkkxh; vf/klwpuk la[;k 501 fnukad 31-12-82 rFkk foHkkxh; i=kad 1626 fnukad 21-7-83 esa fufgr fo/kku ykxw jgsaxsA f'k{kdksa ds lsok vuqeksnuksijkUr fofgrizi= esa osru fu/kkZj.k l{ke inkf/kdkjh] ftyk f'k{kk v/kh{kd 5 no~kjk djus ds mijkUr funs'kd ¼izk0 f'k0½ ds vuqeksnu izkIr dj gh Hkqxrku izkjaHk dh tk,xhA** From the reading of the aforementioned uniform policy decision of the State Government it is absolutely clear that Government had made a commitment for payment of salary by way of grant-in-aid only for such teachers of privately managed institutions including minority school who have requisite educational qualification as also undergone and successfully completed teachers training course. This being the part of condition of recognition of such privately managed school that it cannot employ untrained teachers and claim payment of their salary from the funds of the State Government because services of such untrained teachers will not be recognized and approved by the State Government for the purposes of making payment of their salary in terms of the aforesaid Government Resolution dated 4.3.1993. This Court therefore must hold that the impugned order disapproving the proposal of the District Superintendent of Education with regard to appointment of the petitioners is only in the light of government decision dated 4.3.1993 which despite being made post of the main stumbling block in the counter affidavit for 6 denying the relief has also not been assailed by the petitioners in this writ application. The remaining submission of Mr. Singh as with regard to indirectly assailing the government decision for appointment of only trained teachers in aided schools on the ground that even in the government schools there has been a provision followed by the practice of appointing untrained teachers has to be only noted for its being rejected. First of all it is not factually correct to say that the teachers of government schools are not required to be trained. It is in fact only by way of exception in the cases of scheduled castes and scheduled tribes candidates that certain relaxation has been given for completing the qualification of becoming a trained teacher even in course of employment of such teachers in the Government Schools. The general rule in the government schools also is for appointment of only trained teachers. That apart, the aided schools merely because they receive some sort of assistance for payment of salary of its teachers from the government fund do not become government schools and as such they can not claim the same privilege of appointing untrained teachers. Appointment of trained teachers by the aided 7 schools is part of condition recognizing them as government aided schools. Such conditions in fact are well permissible as was held by the Constitution Bench in the case of T.M.A Pai Foundation & Ors. vs. the State of Karnataka & Ors., reported in (2002) 8 SCC 481, wherein it was held as follows:- “ There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the State. Although these institutions may have been established by philanthropists or other public- spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the State. In such cases, as those of the professional aided institutions referred to hereinabove, the Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of an unaided institution.” In view of the aforementioned settled authoritative pronouncement of the Apex Court, the petitioner cannot be heard to say that the Government was not entitled to 8 lay down the condition of appointment of only trained teachers in the aided schools. The autonomy of aided schools would automatically shrink, the moment they would depend on the government grant. This Court therefore does not find any infirmity in the government decision dated 4.3.1993 laying down appointment of only trained teachers in the aided school. It has to be noted that such trained teachers appointed in the aided schools become entitled for receiving payment of salary from the funds of the State Government by way of aid to these non-governmental aided schools, the managing committee of such schools in fact if they can pay salary from their own resources without seeking any government help can definitely employ untrained teachers but the liability of the payment of their salary cannot be thrust upon the government. In the present case as noted above, the appointment letters of the petitioner itself went to show that the Managing Committee was not prepared to pay salary to them and therefore appointment, continuation of service as also payment of salary was subject to approval of the Government and receiving financial aid from the State Government. In that view of the matter, 9 the petitioners being untrained teachers cannot claim payment of salary from the government funds. It is in this backdrop that the contents of the impugned order dated 27.8.2001 has to be understood inasmuch as when the service of the untrained teachers like the petitioners were not found fit for its being approved by the Government, it was communicated that their services in terms of the conditions imposed in the appointment letter may be terminated by the Managing Committee. There is nothing wrong in such stipulation. That being so, this Court does not find any merit in this writ application and the same is, accordingly, dismissed. Patna High Court Dated 6th July 2010 AFR/kanchan (Mihir Kumar Jha, J.)