1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11245 of 2001 1. ONKAR NATH OJHA, son of Sri Akhileshwar Ojha, village & P.O. Ankuri, P.S. Paliganj, District Patna 2. Bishnu Dayal Sah, son of Sri Sakaldeep Sah, resident of village & P.O. Ankuri, P.S. Paliganj, District Patna 3. Indra Kant Jha, son of Sri Lootan Jha, resident of village Sindhiya, P.O. Sindhiya, P.S. Sindhiya, District Samastipur … Petitioners Versus 1. THE STATE OF BIHAR 2. The Special Director, Secondary Education, Human Resources Department, Bihar, Patna 3. Bihar Sanskrit Shiksha Board through its Chairman, Bihar Sanskirt Shiksha Board, Patna 4. The Chairman Bihar Sanskrit Shiksha Board, Patna 5. The Secretary, Bihar Sanskrit Shiksha Board, Patna 6. District Education Officer, Patna 7. Managing Committee, Sri Kamla Sanskrit Prathmik Sah Madhya Vidyalaya, Ankuri, Patna through its Secretary Akhileshwar Ojha … Respondents with CWJC No.5450 of 2002 1. MOSTT.GAYATRI DEVI, wife of Shiv Kumar Tiwary, resident of village Nawahi, P.S. Nawatpur, District Patna 2. Bijendra Kumar Dubey, son of Sri Ramlakhan Dubey, resident of village Balaur, P.S. Udwant Nagar, District Bhojpur … Petitioners Versus 1. THE STATE OF BIHAR 2. The Special Director, Secondary Education, Human Resources Department, Bihar, Patna 3. Bihar Sanskrit Shiksha Board through its Chairman, Bihar Sanskirt Shiksha Board, Patna 4. The Chairman Bihar Sanskrit Shiksha Board, Patna 5. The Secretary, Bihar Sanskrit Shiksha Board, Patna 6. District Education Officer, Patna 7. Managing Committee, Sri Kamla Sanskrit Prathmik Sah Madhya Vidyalaya, Ankuri, Patna through its Secretary Akhileshwar Ojha … Respondents. ----------- 2 16. 5.7.2010 Heard Mr. J.P.Shukla, learned Senior counsel for the petitioners and Mr. Vijay Kumar Pandey, counsel for the Sanskrit Shiksha Board (hereinafter referred to as „the Board‟) as also A.C. to S.C.15. The prayer of the petitioners in both these writ applications reads as follows: “In C.W.J.C.No. 11245/2001 The present writ application for quashing of the order issued in the signature of respondent no.5 by the order of respondent no.4 vide Memo No. 340 dated 28.10.2000 contained in Annexure 21 by which the approval of the services of the teachers of the school including the petitioners has been rejected after lapse of more than twenty years and also the order issued in the signature of respondent no.2 vide Memo No. 1267 dated 23.11.2000 contained in Annexure 22 by which the claim of the petitioners and other teachers for the payment of the salary has been rejected and further for issuance of writ in the nature of mandamus directing the respondents to make the payment of salary of the petitioners for which order has been passed in C.W.J.C.No. 5960 of 1989 on 3 11.9.1997 and also in M.J.C.No. 2164 of 1998 and also the order passed in C.W.J.C.No. 5008 by a division Bench. In C.W.J.C.No. 5450/2002 The present writ application for quashing of the order issued in the signature of respondent no.5 by the order of respondent no.4 vide Memo No. 340 dated 28.10.2000 contained in Annexure 12 by which the approval of the services of the teachers of the school including the petitioners has been rejected after lapse of more than twenty years and also the order issued in the signature of respondent no.2 vide Memo No. 1267 dated 23.11.2000 contained in Annexure 13 by which the claim of the petitioners and other teachers for the payment of the salary has been rejected And further for issuance of writ in the nature of mandamus directing the respondents to make the payment of salary of the petitioners for which order has been passed in C.W.J.C.No. 5960 of 1989 on 11.9.1997 and also in M.J.C.No. 2164 of 1998.” From the reading of the prayer in two writ petitions it would be clear that basically the petitioners have assailed the 4 order of the Secretary to the Board dated 28.10.2000 whereby and whereunder the proposal received from the Managing Committee of Kamla Sanskrit Prathmik Sah Madhya Vidyalaya, Ankuri, Patna (hereinafter referred to as „the School‟) as with regard to approval on the post of Headmaster/ Assistant Teacher and Peon has been rejected primarily on the ground that such appointment in view of the enquiry report of the District Education Officer contained in letter No. 1261 dated 11.6.2000 was not made in the prescribed manner as laid down in Sewa Sarta Niyamawali, 1976. The petitioners have also assailed the appellate order passed by the State Government, through the Special Director dated 23.11.2000 affirming the order of the Secretary to the Board dated 28.10.2000. Mr. Shukla would submit that once this Court has found that the services of Narayan Dutt Mishra has been approved by the Board there would be no reason for the Board to deny the same benefit at least in respect of Onkar Nath Ojha, petitioner no.1 who too alike Narayan Dutt Mishra was initially 5 approved by Kameshwar Singh Sanskrit University, Darbhanga vide an order dated 8.8.1981. He would further submit that the appointment of petitioner no.2 with effect from 25.2.1962 and he having already attained the age of superannuation in his case only payment of salary was required to be gone into and therefore, even if petitioner no.2 was not covered by the order of the University, in his case deemed approval would be the concept, inasmuch as proposal sent by the Managing Committee was not approved by the Board. Continuing to assail the order even in the case of petitioner no.3 of the first case Indra Kant Jha Mr. Shukla would adopt the same line of reasoning, inasmuch as the name was not in the order of the University. Therefore, deemed approval of the Board has been again made basis for his continuance and payment of salary. Mr. Shukla while pressing the cases of two petitioners in the second writ petition would submit that even Shiv Kumar Tiwary (petitioner no.1 of that case) has already died and therefore, for him the issue is for payment of salary to his heirs 6 and since his appointment also and the appointment of petitioner no.2 in the second case was made on 16.12.1992, the Board cannot refuse to approve their services or deny the payment of salary especially when the Managing Committee has sent resolution informing the Board with regard to such appointment. Counsel for the Board, on the other hand, would submit that the case of Narayan Dutt Mishra is altogether different, inasmuch as Narayan Dutt Mishra was actually removed from the service by a resolution of the Managing Committee in the year 1987 and thereafter when his such removal was approved by the Board he had filed an appeal before the State Government and the same was allowed by the Special Director as a result whereof Narayan Dutt Mishra was deemed to have been restored in service of the school. As against the aforementioned order of the Special Director the Managing Committee had filed a writ application, C.W.J.C.No. 5960 of 1989 and thereafter on the basis of compromise the services of Narayan Dutt Mishra, who was respondent no.4 therein, had 7 been deemed to have been resotred, inasmuch as the writ application was disposed of by a consent order. He would, therefore, submit that the approval of Narayan Dutt Mishra can have no similarity as against these petitioners. In the opinion of this Court the first and foremost question to be answered in these two cases is that the school of the petitioners is admittedly in existence and its name still figure amongst 223 Sanskrit schools recognized by the Bihar Sanskrit Shiksha Board for the purposes of imparting education. In all these 223 schools the State Government is releasing fund for payment of salary against the posts which are covered by the prescribed staffing pattern. It is also not in doubt that the school in question which was earlier functioning as a Tol-Vidyalaya got classified as a Primary cum Madhya Vidyalaya only in the year 1984 and therefore, the concept of creation of sanctioned post in the school could not have come prior to 1983, inasmuch as earlier only the State Government was giving deficit in grant to 8 the post of teachers in Sanskrit school and the petitioners no. 1 and 2 had never received such grant. The claim of petitioner no.1 on the basis of the order of the University dated 8.8.1981 must be rejected, inasmuch as on 8.8.1981 Kameshwar Singh Darbhanga Sanskrit University had become functus officio because of promulgation of the ordinance followed by the Bihar Sanskrit Shiksha Board 1981 and thus as on 8.8.1981 the University could not have granted any approval or fund for payment of salary of any of the teachers of recognised schools. Thus the said order of the University dated 8.8.1981 would not be binding on the Board or the Government for the purposes of making payment of salary of the petitioners 1 and 2 from the funds released by the State Government to the Board. However, there is still a difficulty for the Board because if the Board at one point of time had accepted Narayan Dutt Mishra as a teacher whose name also figures in the approval given by the university, it cannot at least discriminate petitioner no.1 who also was given such 9 approval by the University. Therefore, the case of petitioner no.1 was not to be considered on the post of Headmaster but only against the post of teacher because in the year 1978 when he has claimed the post of Headmaster he could not have got such approval from the Board inasmuch as the school was classified as Prathmik Sah Madhya Vidyalaya only in the year 1983 envisaging concept of Headmaster and five teachers, the total strength being six as per staffing pattern of the State Government dated 29.6.1981. In that view of the matter, the case of petitioner no.1 has to be considered afresh treating that the services of Narayan Dutt Mishra has already recognized and to that extent the Special Director of the Board must take a fresh decision with regard to petitioner no.1 Onkar Nath Ojha. As with regard to petitioner no.2 Bishnu Dayal Sah, who is said to have been appointed on 25.2.1961 in Kamla Sanskrit Prathmik Sah Madhya Vidyalaya it will be difficult to allow payment of salary because he has never received any payment from the 10 Government fund and the Board had become liable for such payment only after the school was classified as Prathmik Sah Madhya Vidyalaya. There is no order of approval in his favour by any authority and the concept of deemed approval in his case cannot be applied, inasmuch as the rules were made in the year 1976 whereas petitioner No.2‟s appointment is dated 25.2.1962. Therefore the case of petitioner no.2 must be and is hereby rejected and for him there should be no reconsideration. Petitioner no.3 Indra Kant Jha claims to be appointed on 14.12.1983. At that point of time the Board alone was the Controlling authority and the Board had never approved his service from 14.12.1983 and in his case the first decision was taken on 28.10.2000. In his case, therefore, a fresh enquiry is to be conducted as to whether at the time of his appointment on 14.12.1983 the posts were advertised, selection norms were followed and approval was sought from the Board in the manner prescribed. This enquiry will be again conducted in the case of petitioner no.3 by 11 the Special Director and if he would find that there was no flaw in the appointment and continuance of petitioner no.3 he would accord approval of his service at least from the prospective date even he is found to continue in school. The claim of Shiv Kumar Tiwary, who is no longer alive and in fact said to have died during the pendency of this writ application being one having qualification of Madhyama and to be covered by the staffing pattern within six posts for the school in question it should again be examined in the light of resolution of the Managing Committee if such appointment was made on the basis of an advertisement and by following selection norms. The claim of petitioner no.2 of the second writ petition, namely, Bijendra Kumar Dubey would squarely depend on the issues whether there was already an approval given to the school for a post of Science teacher. It has to be noted that under the resolution of the State Government dated 29.6.1981 the Science teacher post was to be approved by a separate order and unless there be such 12 order the appointment of petitioner no.2 of the second writ petition cannot be made with effect from 16.12.1992 and consequently there can also be no obligation for the State to make payment of his salary. Therefore, this limited enquiry in case of Bijendra Kumar Dubey has to be also conducted by the Special Director. These relevant aspects in fact having been not gone into in the order of the Special Director dated 23.11.2000, and the summary disposal of the cases of the petitioners of two writ applications whose date of appointment ranged between 1962 to 1992 ought to have not been decided without dealing individual cases of each of the petitioner. Since this court would find that there is no independent application of mind by the Special Director to the aforementioned aspects his order dated 23.11.2000 is set aside and the matter is remitted back to the Special Director who while examining the case of the petitioners would specially address to the following aspects: 13 (a) The availability of the sanctioned post on the date of appointment of the petitioners as per staffing pattern. (b) The manner of appointment of the petitioners by the Managing Committee. (c) The communication made by the Managing Committee to the Board as with regard to seeking approval of services of the petitioners. (d) The decision in favour of Narayan Dutt Mishra treating him to be valid teacher and considering for his payment of salary and its impact on the cases of other petitioners. (e) The facts with regard to functioning of the school and sending its students for appearing in the examination conducted by the Board should be also taken into account, inasmuch as in this school there is no claim to be put forward by any other set of teachers or the Managing Committee and therefore, if the school is functioning, with set of teachers whose approval for one reason or the other was not decided by the Board for a period of 8 years to 19 years, the teachers cannot be denied payment of salary if the school has really been functioning. 14 Once these aspects are examined individually in case of the petitioners and if it is found that one or the other petitioner would become entitled for approval the Special Director would pass an order for payment of their salary from the date their appointment is supported by the documents and can be held to be legal and valid in terms of the Act and Rules. Such exercise by the Special Director must be done after giving opportunity of hearing to the petitioners within a period of six months from the date of receipt/ production of a copy of this order. Both the applications are, accordingly, disposed of. (Mihir Kumar Jha,J.) Surendra/