IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5894 of 2006 ---------- In the matter of an application under Article 226 of the Constitution of India. --------- SHAHEDA QUAMER, W/O QAIYOUM UZZAMAN, R/O MOHALLA-MUSLIM ROAD, P.S.-NAWADAH, DISTRICT-NAWADAH. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 3. THE SECRETARY, VIDYALAYA SEWA BOARD, BIHAR, PATNA. 4. THE DISTRICT EDUCATION OFFICER, NAWADAH. 5. THE SECRETARY, BIHAR STAFF SELECTION BOARD, BIHAR, PATNA. 6. THE SECRETARY, IRAQUI URDU GIRLS HIGH SCHOOL, ANSARI NAGAR, P.S.-NAWADAH TOWN, P.S.AND DISTRICT-NAWADAH. ………………RESPONDENTS. ----------- For the petitioner : Mr. Ganesh Pd. Singh, Sr. Adv. and S. Parasmani, Adv. For the State : G.A.-VIII. For Vidayalaya Sewa Board: Mr. Vipin Kumar,Adv. For Res. No. 6 : Md. Kamaluddin, Adv. ----------- P R E S E N T THE HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Petitioner initially filed this writ application for a direction to the respondents to approve her services as Assistant Teacher of Farsi in Urdu Iraqi Girls High School, Nawadah and pay her salary as due since July, 1999, and also pay the current salary. 2. During the pendency of this writ application, the Secretary of the Bihar Staff Selection Commission (hereinafter referred to as the - 2 - ‘Commission’), by memo no. 588 dated 29.4.2006, communicated the decision of the Commission to the District Education Officer by which approval of the services of the petitioner was rejected. Copy of the same was sent to the petitioner also. Consequently, Secretary of the School, by letter dated 3.5.2006, relieved petitioner from services of the school. Accordingly, petitioner filed an I.A. no. 2290 of 2006, annexing the said letters as Annexures-19 and 20, and prayed for amendment in the writ application, by adding a prayer for quashing of the said two communications. Petitioner also prayed to add the two Secretaries as party respondent in the writ petition. The said prayer of the petitioner, to add them party respondents, was allowed by order dated 14.11.2006 and notices were issued to the newly added respondents. 3. Since Secretary of the Commission and Secretary of the School were added respondents in the case and notices were issued to them, the I.A. No. 2290 of 2006 is allowed and the petitioner is permitted to challenge Annexures-19 and 20, and the said I.A. is directed to be treated as part of the writ petition. 4. Case of the petitioner, as appearing in the writ petition, in short, is that in 1982 the Iraqi Urdu Girls High School, Ansari Nagar, Nawadah, was granted recognition by the State Government. Consequently, to fill-up the vacant posts of Assistant Teachers in different subjects, management of the - 3 - school published an advertisement, in an Urdu daily newspaper, namely, Quami Aawaz, on 7.2.1984. The translated copy of the advertisement is annexed as Annexure-1, which mentioned that, besides other vacancies, one vacancy of Farsi/Arabi and one vacancy of Fazil/Arabi (from Madarsa Education Board) were available. The said advertisement fixed 24.2.1984 as last date for receipt of applications and 6.3.1984 as date of interview. It is contended that petitioner applied and was selected by the Governing Body of the school and accordingly she was appointed, vide Annexure-2 dated 26.2.1984, as Assistant Teacher of Farsi subject in the school. It is also contended that petitioner was a Graduate, but did not had qualification of training. However, as no other candidate was available with higher qualification, she was appointed in terms of Government letter no.852 dated 21.12.1982. By Annexure-3, letter no. 405 dated 30.5.1984, services of petitioner were regularized by the Secretary of the school with effect from 1.3.1984 and she was advised to obtain training qualification at her own cost. By Annexure-4, her pay was fixed in the revised scale at the rate of Rs. 500/- per month. Management of the School, by Annexure-5 dated 27.9.1984, recommended to the District Inspectress of the school for approval of her services, giving details of the units available in the school and the incumbents working there. District Inspectress of the school, vide Annexure-6 dated 30.08.1984, accordingly, - 4 - gave temporary approval to her services for six months only. 5. By letter no. 1332 dated 27.9.1986 of the Director, Higher Education, she was deputed for training and accordingly the Director of the Institute, vide Annexure-8 dated 27.10.1986, requested the headmaster of the school to relieve her. She completed her training and passed examination of Dip- In-Ed. in Arabic and Persian in 1987 in First Division and the result was notified by Anneuxre-9 dated 15.12.1987. Thereafter, she was put in the scale of trained teacher in Rs.850-1270-1360, vide Annexure-10, which was later on revised to Rs. 1640-2600-2900. 6. It appears that the Special Director of the Higher Education Department directed the Principal and the Secretary of the school to submit a list of teachers appointed in school after 2.10.1980 for approval by the Bihar Vidyalaya Sewa Board (hereinafter referred to as the ‘Board’), vide letter no. 849 dated 19.9.1998. In response to it, school sent the list by letter no. 23 dated 25.10.1998 to the District Education Officer (hereinafter referred to as the ‘D.E.O.’). D.E.O. in turn, vide Annexure-11 dated 17.11.1998, sent the list to the Secretary of the Board for approval of their services. Secretary of the school also, through the D.E.O., requested the Chairman of the Board, vide Annexure-12 dated 31.10.1998, for approval of services of the petitioner against 9th unit in place of one Roshan Ara Khalil, - 5 - claiming that petitioner was appointed as untrained teacher in the school, in terms of letter no. 123 dated 6.8.1986. It appears that, after receipt of the details of the teachers appointed in the school after 2.10.1980, Secretary of the Board made an enquiry with regard to the appointment of the untrained teachers in the school from the D.E.O., Nawadah, vide Annexure-13 dated 11.8.1999. In the said letter specific query was made with regard to the petitioner and her qualification. The D.E.O. in turn communicated the query of the Secretary of the Board to the management of the school, which submitted its report by letter no. 8 dated 4.5.2000. It was mentioned in the letter that petitioner was given relaxation as candidate of Farsi subject. However, Secretary of the Board again made an enquiry from the D.E.O., vide Annexure-14 dated 29.8.2001, specifically with regard to the petitioner. In reply to it, the D.E.O. submitted his report vide Anneuxre-15 dated 16.9.2001. Vide Annexure-16 dated 9.10.2002, the Secretary of the school also wrote to the Secretary of the Board recommending for approval of services of the petitioner. The D.E.O. also again wrote to the Secretary of the Board, vide Annexure-17 dated 23.5.2003, recommending for approval of services of the petitioner. During this period, while enquiry was being made, salary of petitioner was stopped from July, 1999, pending final approval of her services by the Board. As such petitioner submitted her - 6 - representation, vide Annexure-18 dated 8.2.2006, to the Secretary of the Commission (which stepped into shoes of Board after its dissolution) for release of her salary. Since, no orders were passed on her representation and matter remained pending with the Commission, petitioner filed this writ application. 7. As said earlier, during the pendency of the writ application, approval of the services of the petitioner was finally rejected by Annexure-19, and as a follow up action, petitioner was relieved by Anneuxre-20. Therefore, petitioner has filed the said I.A. for necessary amendments in the writ application with a prayer to challenge the Anneuxres-19 and 20 also. 8. Submission of learned senior counsel for the petitioner is that approval of services of the petitioner was refused by the Commission solely on the ground that she had no requisite qualification at the time of her appointment. He submitted that, for ancient language, 1983 rules provided for relaxation and, therefore, relaxation was granted and she was appointed, being a simple Graduate with no training qualification. He also submitted that no candidate of higher qualification was available in the interview and, therefore, management of the school had no option than to select petitioner for appointment by giving her said relaxation. He also submitted that subsequently petitioner enhanced her qualification in 1987 and her services were also regularized with - 7 - effect from 1.3.1984. He submitted that, as she had rendered 22 years of service in the school, it may be too hard for her to be terminated at this stage. As such equity lies in her favour. Hence, respondents be directed to approve her services in the school and allow her to continue there with all consequential benefits with retrospective effect. Learned senior counsel for the petitioner also submitted that, since petitioner had acquired qualification of training in 1987, respondents can consider for approving her services from 1987 onwards. On an earlier date, he had submitted that, for this proposition he would refer to some orders of this Court on the next date. However, he did not do so at the time of final arguments. 9. Counter affidavits have been filed in this case by the respondents D.E.O., the respondent Secretary of the school and the respondent Commission. Respondent Secretary of the school has, more or less, supported the petitioner in his affidavit taking the same stand, and reiterating that petitioner was appointed pursuant to selection process as no better candidate was available. It has also been pointed out in the counter affidavit of the said Secretary that the 9th post had fallen vacant and, therefore, recommendation was made for approval of services of petitioner against said 9th posts. It was also averred that petitioner was sent for training and she had completed her training and acquired the qualification of Dip-in-Ed. It has been contended by learned counsel - 8 - appearing for the said Secretary of the School that, for appointment on the post of Teacher for Arabi subject only, certificate from Madarsa Education Board was required, and not for appointment on the post of Farsi Teacher. He lastly pointed out that the pay-bill was sent for payment of the salary of the teachers, including that of the petitioner, from July, 1999 to July 2000, but the same was returned by the D.E.O., vide Annexure-A to counter affidavit dated 18.9.2000, informing Secretary of the School that Secretary of the Board has ordered to stop payment of salary of such teachers who were appointed after 2.10.1980 and whose services had not been approved by the Board as yet. The said letter contained the name of such teachers, including that of petitioner. Accordingly, Secretary of the school was directed to submit a fresh pay-bill. 10. In the separate counter affidavits of respondent no. 4, as also respondent nos. 3 and 5, more or less similar stand has been taken. They have stated that petitioner’s services were not approved by the Commission as petitioner was not found to be qualified for appointment on the post of Assistant Teacher of Farsi subject in the school. In the affidavit of the Commission, annexing marksheets of the petitioner as Annexure-B and C, it was shown that the petitioner was a simple B.A. with subjects Urdu, Persian and Political Science. She completed her Dip- in-Ed in 1987 and M.A. in 1992 from Magadh University. - 9 - Therefore, it was contended that on the date of her appointment she lacked qualification for her appointment under the 1983 Rules, extract from which has been annexed as Annexure-D to the counter affidavit. It was also contended that the District Inspectress of school or the D.E.O. had no authority to grant approval to the services of the petitioner, temporarily or otherwise, and it was only the Board (now the Commission) which had the authority to grant such approval or refuse it. 11. From the pleadings of the petitioner and submissions of her learned senior counsel it appears to be an admitted position that the petitioner was a simple Graduate without any training qualification at the time of her appointment. However, it is asserted that the petitioner was nonetheless appointed as no other candidate with better qualification was available for the post of Farsi teacher in the School and therefore relaxation was granted to her in terms of the Government letter no. 852 dated 21.12.1982. 12. Since heavy reliance has been placed on the said letter, relevant portion of the said letter is quoted hereinbelow for easy reference:- ¼Þ¼<½ 2-10-80 ds ckn ls izLohd`r gksus okys fdlh ek/;fed fo|ky; esa ¼izkP; f'k{kdksa dks NksM+dj½ vizf'kf{kr f'k{kdksa dh lsok dh ekU;rk ¼xq.koRrk rFkk ,d cM+h la[;k esa izf”kf{kr csjkstxkjh dh leL;k dks ns[krs gq,½ ugha nh tk;xhAÞ 13. The said stipulation of the said letter quoted above shows that untrained teachers appointed - 10 - after 2.10.1980, excluding the teachers of Ancient subjects were not entitled for approval of their services. 14. Learned senior counsel for petitioner submitted that an exception was carved out therein for untrained teachers in Ancient subjects and, therefore, lack of training qualification of petitioner could not come in the way of respondents to approve the services of petitioner, especially when she acquired the qualification of training later on. He also submitted that, though petitioner was a simple Graduate but no other candidate was available with better qualification and no degree from Madarsa Education Board was required for appointment on the post of Farsi Teacher as per advertisement. Therefore, petitioner was validly and legally appointed by the Managing Committee and hence, respondents were legally obliged to approve her services. Referring to the judgments of this Court dated 14.3.2002 passed in CWJC No. 1608 of 2002 which was approved by the Division Bench of this Court by order dated 27.1.2003 passed in LPA No. 494 of 2002, he pointed out that, on equitable considerations, petitioner’s services were required to be approved by the respondents, as during the pendency of her continuance as teacher of the school she acquired the qualification of training and she also enhanced her qualification to M.A. He also referred to an order of this Court dated 14.7.2008 passed in CWJC No. 6874 of 2004 to contend that the Commission had - 11 - erred in respect of consideration of qualification of the petitioner and, therefore, the matter was fit to be remitted back to the Commission after quashing the impugned order (Annexure-19), for re-consideration in the light of the qualifications acquired by the petitioner subsequently. 15. Learned counsel for the respondent-State and the Commission on the other hand submitted that the said letter dated 852 dated 21.12.1982 lost its force and applicability after the said 1983 Rules came in force. In the said Rules specific qualification was laid down for teachers of Ancient subjects, as will be evident from extract of the Rules annexed as Annexure- D with the counter affidavit of respondents 3 & 5. Since the issue of qualification for eligibility of the petitioner at the time of her appointment is the bone of contention, the said stipulation in the Rules as appearing from Annexure-D is quoted hereinbelow:- ßizkP; f'k{kd %& fdlh ekU;rk izkIr fo'ofo|ky; vFkok jkT; ljdkj }kjk ekU;rk izkIr cksMZ@lfefr }kjk iznr vkpk;Z ¼lkfgR; vFkok O;kdj.k½ Qkfty ¼vjch vFkok Qkjlh ds fMxzh@fMIyksek vFkok laLd`r@Qkjlh@vjch esa ,e0,0 @vkulZ ,oa izf”kf{krA fVIi.kh & vkpk;Z@Qkfty mEehnokjksa dh fu;qfDr ds ekeys esa fdlh ekU;rk izkIr fo”ofo|ky; ;k jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj ds f”k{kk foHkkx }kjk iznr f'k{kd izf”k{k.k fMxzh@fMIyksek izek.k&i=/kkjh dks vf/kekU;rk izkIr gksxhAß 16. From bare reading of the above quoted - 12 - stipulation of the Rules shows that degree of Fazil from any Government recognized Board or University, or degree of M.A. or Honours in the subject, along with qualification of training was the requisite qualification for appointment as Assistant Teacher in Ancient subjects during the relevant period. It is an admitted position that the petitioner was neither having a Fazil degree nor a degree of M.A. in Farsi nor a degree of B.A. (Hons.) in Farsi. This is also an admitted position that she had no qualification of training which was essential in either of the contingencies. Thus it is apparent that at the time of her appointment petitioner was neither qualified subject-wise for appointment nor she had the requisite qualification of training. Hence, it is clear that the respondent Commission has applied its mind to the relevant provisions of law for rejecting the approval of services of the petitioner and no fault can be found out in the said impugned communication (Annexure-19) containing the resolution of the Commission in this regard. 17. The contention of the learned senior counsel for the petitioner that, prior to the said rejection, no notice was issued to the petitioner and, therefore, there has been a violation of Principles of Natural Justice in the case, is also unfounded since the appointment of the petitioner itself was subject - 13 - to approval by the Board (now the Commission) which has been rejected by the Commission after going through the overall aspect of the matter as presented to it repeatedly by the respondent D.E.O., the Secretary of the school as well as the petitioner herself through her representation contained in Annexure-18. 18. Had it been that the only infirmity in the petitioner’s appointment was her lack of qualification and eligibility for appointment, this Court, on equitable considerations, and in the light of the orders of this Court relied upon by learned senior counsel for the petitioner, may have directed the respondents to continue with the services of the petitioner. However, as the records show, there are circumstances which dissuade this Court from exercising its equitable jurisdiction in favour of the petitioner. The entire case of the petitioner and the respondent Secretary of the college is that petitioner was appointed pursuant to an advertisement and selection process and she was working in the school since 1.3.1984. The translated copy of the advertisement is annexed by the petitioner as Annexure-1 and her appointment letter as Annexure-2. A mere glance to Annexure-1 shows that the last date of submission of applications fixed by the advertisement was 24.2.1984 and it was notified that the interview shall be held on 6.3.1984 in the school. It is shocking to notice from Anneuxre-2 that, merely two - 14 - days after the last date of receipt of applications, petitioner was appointed as Farsi Teacher and she was directed to join within three days. Besides, consistent case of the petitioner, as well as of the Secretary of the school, is that petitioner was working in the school from 1.3.1984. This shows that even before the application of the candidates could be scrutinized for their interview on 6.3.1984, petitioner was appointed and permitted to join. This clearly falsifies the claim of the petitioner and that of respondent Secretary of the school that the appointment of the petitioner was pursuant to an advertisement and a selection process. The respondents have pleaded that since no better candidate was available with higher qualification petitioner was appointed. No details of the same have been furnished by the petitioner or the respondent Secretary of the School in support of the same. On the other hand as noticed above, it is apparent that the petitioner was appointed and allowed to join in the school even prior to the holding of such interview. This shows that the entire selection process adopted by the management of the school was a farce and may be only a paper transaction to build-up a case for the petitioner, or it may be that, after advertisement, deliberately, to frustrate the selection process, and to deny consideration to any other candidate, petitioner was, in a planned way, appointed in a hurry and allowed to join. A bonafide act of an employer, committing - 15 - irregularities in appointment of an incumbent and continuing him for long may invite equitable consideration by this Court in a given case. But that is not the case here. One solitary conduct of the Managing Committee, appointing petitioner prior to the date of interview, when the same had already been announced, and thereafter claiming that petitioner was the best available candidate, shows its malafide. 19. Moreover in Anneuxre-2 it is mentioned that the post of Farsi Teacher in the school was a sanctioned unit which also stands contradicted by the report of the Secretary of the school as contained in Annexure-5. It shows that there were total 9 units sanctioned in the School, including the post of Head Mistress which does not mention about any sanctioned post of Urdu teacher available in the school, vacant or otherwise. It has been mentioned in the said letter and it has been clarified thereafter that one Ishrat Bano was appointed in the school as Home Science teacher and thus a post stood sanctioned. Thus it was shown that all the 9 units in school were filled-up. 20. However, it was explained that one Roshan Ara Khalil who was appointed as Urdu Teacher was absent and hence the said Ishrat Bano who had in the meanwhile acquired the teachers training qualification from Arabi Research Institute and was also B.A. (Hons.) in Urdu was shifted by the management in place of Roshan Ara Khalil as Urdu Teacher and one Unmool - 16 - Khair was appointed as Home science teacher in her place. In the circumstances from discussion made in Annexure-5, it is not at all clear how petitioner was appointed in the School as Farsi teacher and on which sanctioned vacancy. 21. In the circumstances, it is beyond comprehension of this Court as to how recommendation was made by the Secretary of the school for approval of services of petitioner, who was said to be a temporary Farsi Teacher claimed to be working against the said 9th unit, which was a post of Home Science teacher. These all show that the management of the school was manipulating affairs of the School and creating records from the very beginning to, somehow, take in the petitioner in the School with open disregard to the law and established procedure. 22. Hence, taking into account all aspects of the matter, as noticed above, this Court is of the opinion that this is not a fit case in which relief can be granted to the petitioner on merits, or on equitable considerations. 23. In the circumstances, this Court does not find any merit in the writ application and the writ application is dismissed. Patna High Court The 29th October, 2009 N.A.F.R./Arvind (J. N. Singh, J.)