IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3495 of 2005 RAM PRAVESH PANDEY & ANR Versus THE BIHAR SANSKRIT SHIKSHA BOARD ----------- 4/ 19/8/2008. Heard learned counsel for the petitioner and learned counsel for the State. The relief sought is for a mandamus to the respondent Board to grant the approval to the services of petitioner No.1 as an assistant teacher and to petitioner No.2 as a clerk. The Baldeo Sanskrit High School is a recognized Sanskrit School under the Bihar Sanskrit Siksha Board. Pursuant to the death of a teacher, the Managing Committee of the school resolved to fill up the vacancies by way of promotion when petitioner No.1, who held the post of clerk, came to be appointed as such on 24.9.2002. Likewise, in pursuance of an alleged advertisement, petitioner No.2 came to be appointed as a clerk. The submission essentially under Chapter-3, Rule-8 of the Bihar Non-Government Sanskrit High Schools (Service Condition) Rules1976 dated 20.11.1976 was that the school in question sought approval on 25.9.2002 from the Board. This was followed by reminders. Therefore, in absence of an express order of rejection within the time stipulated under Rule-8 of Chapter-3 of the Rules, there was deemed approval as no rejection was communicated within the prescribed period. Learned counsel for the Board urged that the Rules do 2 not visualize an appointment by promotion from the post of clerk to the post of teacher which constitute separate cadres. Any such appointment under Rule-1 read with Rule-10 of Chapter-3 of the Rules could be made only after proper advertisement and upon selection. He additionally relies upon the impugned order of refusal by the Board dated 1.7.2006 not to grant the approval to submit that petitioner No.2 was, in fact, the son of the Head Master of the school and that the Head Master had participated in the deliberations of the Managing Committee when the appointment of petitioner No.2 was approved, without any open advertisement and competitive selection from several applicants. Though the petitioner no.2 has sought to deny the same in his reply to the counter affidavit, yet in I.A. No.5178/06 challenging the order dated 1.7.2006 no such denial has been pleaded. In any event, it is an admitted position that no open advertisement was published in terms of Rule-1 of Chapter-3 of the Rules. What transpires from the deliberations of the committee dated 24.9.2002 is that consequent to the death of a teacher vacancy arose in the cadre of teachers. No open advertisement was published, as required by the Rules, when appointment came by way of promotion from the cadre of clerks. The consequent vacancy in the cadre of clerk then came to be filled by the son of the Head Master. To this Court, the very participation of the Head Master in the deliberations of the Managing Committee when the case of his 3 son, petitioner No.2 was being considered, vitiates his selection. This Court holds so. Insofar as petitioner No1 is concerned, if teachers and clerks constituted separate cadres and on a conjoint reading of Rule-1 and 10 promotions and appointment by promotions could be made within the cadre, this Court finds it difficult to uphold the validity of the appointment of petitioner No.1 as a teacher without an open advertisement. This Court, therefore, finds no infirmity in the order of the Board refusing to grant such approval. The writ application has no merit. The same is accordingly dismissed. KC ( Navin Sinha,J )