IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1134 of 2011 In Civil Writ Jurisdiction Case No. 1658 of 2001 ====================================================== 1. Surendra Nath Pandey, S/o Late Shiv Nandan Pandey, retired working as Headmaster in Middle School Hilalpur, Anchal Hajipur, Distt.- Vaishali 2. Shivranjan Prasad, S/o Late Prabhu Narayan Sinha at present working as Headmaster in Middle School, Shishauni Prabodhi, Anchal Lalganj, Distt.- Vaishali 3. Ram Ranjan Sinha, S/o Late Prabhu Narayan Sinha, retired working as Headmaster in Middle School, Bilandpur, Anchal Mahua, Distt.- Vaishali 4. Sukdeo Narayan Singh, S/o Late Daroga Prasad Singh, retired working as Headmaster in Middle School Kutubpur, Anchal Hajipur, Distt.- Vaishali 5. Ram Prasad Singh, S/o Late Ram Lakhan Singh, retired working as Headmaster in Girls Middle School, Hathsarganj, Anchal Hajipur, Distt.- Vaishali 6. Shatrughan Prasad Shukla, S/o Late Ramrit Shukla, retired working as Headmaster in Middle School, Baikunthpur, Anchal Mahua, Distt.- Vaishali .... .... Petitioners/Appellants Versus 1. The State of Bihar 2. The Director, Primary Education Department, Govt. of Bihar, Patna 3. The District Education Establishment Committee, through its Chairman, the District Magistrate, Vaishali 4. The District Superintendent of Education, Vaishali …. …. Respondents-Respondents 1st Set 5. Ram Chandra Singh, S/o Late Lilbran Singh, at present working as Headmaster in Middle School, Manganpur, Anchal- Lalganj, Distt.- Vaishali 6. Bir Bahadur Prasad Singh, S/o Sri Bhuvan Singh at present working as Headmaster in middle School, Manjhauli, Anchal Bidupur, Distt.- Vaishali 7. Kameshwar Prasad Sinha, S/o Sri Parmeshwar Singh, at present working Patna High Court LPA No.1134 of 2011 (5) dt.21-09-2011 2 / 7 2 as Headmaster in Middle School, Chakwara, Anchal- Hajipur, Distt.- Vaishali .... .... Respondents-Respondents 2nd Set ====================================================== With Letters Patent Appeal No.1342 of 2011 In Civil Writ Jurisdiction Case No. 2303 of 2001 With Interlocutory Application No. 6515 of 2011 In Letters Patent Appeal No.1342 of 2011 ====================================================== 1. Raghunath Singh, son of late Ram Narayan Singh, at present posted as Headmaster Nagma Middle School, Vaishali, Resident of Village- Pratap Tand, P.O.-Pratap Tand, P.S. Bhagwanpur, Dist-Vaishali. 2. Mahendra Bhakta, son of late Bipat Bhakta Resident of Village- Salempur, P.O.-Nandlalpur, P.S. Vaishali, District-Vaishali, at present posted as Headmaster Middle School, Jehanabad, Lalganj, Vaishali. 3. Bhavesh Sharan, son of late Ramji Prasad, Resident of Village-Belsan, P.S. Vaishali, District-Vaishali, at present posted as suspended Headmaster Middle School, Madhusudan Pakari, Lalganj, Vaishali. .... .... Petitioners/Appellants Versus 1. The State of Bihar. 2. The Secretary, Human Resources Development Department, Patna. 3. The Director, Primary Education, Bihar, Patna. 4. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 5. The Collector, Vaishali under the power of Chairman of District Establishment Committee (Education), Vaishali. 6. The District Superintendent of Education-cum-Secretary, Establishment Committee Education, Vaishali at Hajipur. …. …. Respondents-Respondents 7. Shiv Shankar Prasad Singh, son of late Jagarnath Singh, Resident of Patna High Court LPA No.1134 of 2011 (5) dt.21-09-2011 3 / 7 3 Village Husena, Raghav, P.S. Vaishali, at present posted as Headmaster Middle School, Yatbarpur, Lalganj, Vaishali. .... .... Petitioner-Respondent ====================================================== Appearance : (In LPA No.1134 of 2011) For the Appellants : Mr. Pramod Mishra, Advocate For the Respondents : Mr. Udai Shankar Singh, A.C. to G.A.-2 (In LPA No.1342 of 2011) For the Appellants : Mr. Madheshwar Singh, Advocate For the Respondents : Mr. Udai Shankar Singh, A.C. to G.A.-2 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 5. 21-09-2011 Interlocutory Application No. 6515 of 2011: Delay of 274 days occurred in filing Letters Patent Appeal No.1342 of 2011 is condoned. Interlocutory Application stands disposed of. Letters Patent Appeal Nos. 1134 of 2001 & 1342 of 2011: These two Appeals are preferred by the concerned writ petitioners against the common judgment and order dated 23rd September 2010 passed by the learned single Judge insofar as C.W.J.C. Nos. 1658 of 2001 and 2303 of 2001 are dismissed. The orders under challenge before the learned single Judge were made by the District Superintendent of Education, Vaishali on 26th December 2000. Under the impugned order the appointment of the respective writ petitioner as Headmaster of an elementary school made after 1st January 1986 by the District Patna High Court LPA No.1134 of 2011 (5) dt.21-09-2011 4 / 7 4 Superintendent of Education has been cancelled and it is ordered that they will receive the salary in the pay-scale applicable prior to their appointment as Headmaster and that they shall not act as Drawing and Disbursing Authority. The appellants-writ petitioners are the beneficiaries of the orders made by the then District Superintendent of Education, Vaishali, after 1st January 1986, posting the concerned writ petitioners as the Headmaster in the same pay-scale as was applicable to them prior to their posting. It appears that over the years though there was no specific order, the appellants, being the Drawing and Disbursing Authority, drew the salary in the revised pay-scale applicable to the Headmasters. Since the posting of the appellants as Headmaster, in exercise of powers conferred by proviso to Article 309 of the Constitution, the Governor of Bihar has framed the Bihar Taken Over Elementary School Teachers’ Promotion Rules, 1993 (hereinafter referred to as ‘the Rules of 1993). The said Rules were specifically made applicable retrospectively with effect from 1st January 1986. Under the Rules of 1993, for promotion to the post of Headmaster one is required to be a trained post graduate. In view of the Rules of 1993, made effective from 1st January 1986 all appointments to the post of Headmaster in the elementary schools made after 1st January 1986 were examined by the State Government. It was decided that those Headmasters who did not possess the requisite qualification of trained post graduate and who are not promoted in accordance with the seniority, their appointment as Headmaster be cancelled. However, the said decision was not implemented for another five years i.e. until the impugned orders were made on 26th December 2000. Patna High Court LPA No.1134 of 2011 (5) dt.21-09-2011 5 / 7 5 The impugned orders were challenged by the appellants in above C.W.J.C. Nos. 1658 of 2001 and 2303 of 2001 under Article 226 of the Constitution. It is not in dispute that the appellants are not qualified to hold the post of Headmaster as none of the appellants is a trained post graduate. The only challenge is that at the time of their appointment the Rules of 1993 were not framed. The said Rules, therefore, cannot be applied to the appointment of the appellants. According to the appellants, their appointment as Headmaster was made according to the then prevalent gradation list and the instructions issued under the Circular dated 18th December 1984. Their appointment, therefore, cannot be held to be illegal; not in accordance with the Rules of 1993. We have perused the records. The learned single Judge has extracted the relevant Rules, Instructions, Orders etc. in extenso. We, therefore, do not reproduce them. We will refer to the relevant provisions to the extent it is necessary. The appellants were teachers in the schools which were taken over by the Government of Bihar under the Bihar Non- Government Elementary Schools (Taking Over of Control) Act, 1976 (hereinafter referred to as ‘the Act’). Section 7 of the Act empowers the State Government to make Rules and Section 8 of the Act empowers the State Government to take such action or pass such order as appears to it necessary for the purposes of removing the difficulty. In exercise of the said power conferred by Section 8 of the Act, the Government of Bihar, under Notification dated 18th December 1984, issued guidelines in respect of the appointment, seniority, promotion and pay-scales of the teachers in the elementary schools taken over under the Act. The said Patna High Court LPA No.1134 of 2011 (5) dt.21-09-2011 6 / 7 6 instructions provide for different grades of pay-scales keeping in view the qualification of teachers such as trained graduate; trained intermediate; untrained intermediate; trained matriculation and untrained matriculation. Paragraph 4 of the said Notification provides for qualification for promotion from the lower grade to the higher grade. Paragraph 12 of the said Notification provides that appointment or promotion of a teacher would be made by the District Education Establishment Committee with the prior approval of the Regional Director of Education. It also provides for preparation of merit list/gradation list and that appointment or promotion shall be made in accordance with such merit list or gradation list. It is pertinent to note that the said Notification did not provide for appointment or promotion to the post of Headmaster. A bare perusal of the so-called promotion made by the District Superintendent of Education reveals that it was not an order of promotion. The orders indicated that the concerned appellant was posted as a Headmaster in the same pay-scale. Even the appellants agree that after their posting as Headmaster they continued to receive the salary as a trained graduate. However, on revision of pay, they drew the pay of a Headmaster. The aforesaid order made by the District Superintendent of Education, Vaishali was ex facie illegal and was made without the authority of law contrary to the aforesaid Notification dated 18th December 1984, particularly paragraph 12 thereof. The said orders were made without regard to the authority of the District Education Establishment Committee or the Regional Director of Education. Though under the said orders the appellants were not granted any monetary benefit, the appellants being Patna High Court LPA No.1134 of 2011 (5) dt.21-09-2011 7 / 7 7 Drawing and Disbursing Authority availed of such benefit on their own. Thus, in above scenario, not only the appointment of the appellants as Headmaster was illegal, the action of the appellants in drawing the salary of Headmaster without a specific order made in that behalf was also bad and illegal. Besides, the appellants were not qualified for appointment as Headmaster as per the Rules of 1993 made effective from 1st January 1986. In our opinion, the State Government was wholly justified in examining the appointments of the Headmaster made since 1st January 1986, keeping in view the eligibility criteria set out under the Rules of 1993. Assuming that the appellants did possess the requisite qualification of trained post graduate, still their posting as Headmaster, having been made in contravention of the 1984 instructions, could not have been upheld. In our opinion, the learned single Judge has rightly dismissed the writ petitions. No case for interference is made out. Appeals are dismissed in limine. Registry will maintain copy of this order in each Appeal. Pawan/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)