IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9943 of 2007 Radha Krishna Choudhary, son of late Ram Sundar Choudhary, resident of village Kriyan P.S. Rosera District Samastipur at present Assistant Teacher in Udayan Sanskrit Uch Vidhyalaya (High School) Kariyan, P.S. Rosera, District Samastipur … Petitioner Versus 1. The State Of Bihar 2. The Commissioner/ Secondary, Education, Department of Education, Govt. of Bihar, Vikash Bhawan, Patna 3. The Special Director Secondary Education, Incharge Sanskrit Education Department of Education, Bihar, Patna Vikash Bhawan, Patna 4. The Bihar Sanskrit Shiksha Board, Patna, Boring Canal Road, Patna through its Secretary 5. The Chairman, Bihar Sanskrit Shiksha Board, Patna, Boring Canal Road, Patna 6. The Secretary, Bihar Sanskrit Shiksha Board, Patna Boring Canal Road, Patna 7. The Managing Committee of the Udayan Sanskrit Uch Vidhyalaya Kariyan P.S. Rosera, District Samastipur 8. The Headmaster of Udayan Sanskrit Uch Vidhyalaya Kariyan, P.S. Rosera, District Samastipur 9. The District Education Officer, Samastipur, District Samastipur 10. The Kameshwar Singh Darbhanga Sanskrit University, Darbhanga Kameshwar Nagar Darbhanga through its Registrar … Respondents ---------------------------------- 3. 15.10.2011 No one appears for the petitioner. Counsel for Bihar Sanskrit Shiksha Board is present. In this writ application the prayer of the petitioner is for a direction to the Bihar Sanskrit Shiksha Board and its authorities for giving approval of appointment of the petitioner in Udayan Sanskrit High School, Kariyan in the District of Samastipur with effect from 1.4.1980 in place of 1.4.1990 as also consequential relief by way of payment of salary for the period 1.4.1980 to 31.3.1990. From the records it transpires that Udayan Sanskrit High School, Kariyan, P.S. Rosera, District Samastipur (hereinafter referred to as ‘the School’) is one of the 222 Sanskrit schools recognized by the Bihar Sanskrit Shiksha Board 2 (hereinafter referred to as ‘the Board’) for which payment of salary is being made from the funds made available by the State Government only to such teachers who are working within the prescribed staffing pattern as laid down by the Government and the Board. The petitioner claims that he had been appointed under the orders of the Secretary of the School on 30.7.1978 and that he would be entitled for his payment of salary alike other teachers of the recognized Sanskrit Schools from the funds of the State Government with effect from 1.4.1980. It, however, appears that the dispute relating to the petitioner’s appointment was not resolved at the stage of Managing Committee of the School and when he did not receive payment of salary for quite a reasonable length of time he had moved this Court in C.W.J.C.No. 2683/1982 for a direction to the Board for making payment of his salary which was disposed of by an order dated 21.9.1987 with a direction to the Chairman of the Board to decide the claim of the petitioner. The Chairman of the Board however by his order dated 16.5.1988 had found no merit in the claim of the petitioner and had recorded in his order that the petitioner’s appointment was never made by the Managing Committee of the School and that the alleged appointment of the petitioner by the Secretary of the School had no validity in the eye of law. The petitioner thereafter had assailed the said order before the Special Director, Sanskrit Education, in Appeal No. 36 of 1988 and the Appellate authority had set aside the order of the Chairman of the Board dated 18.5.1988. The said order of the Special Director, Sanskrit Education, dated 1.12.1990 was also assailed by 3 the aggrieved persons and the Managing Committee in C.W.J.C.No. 373/1991 wherein it was stated that the Special Director ought to have not interfered with the functioning of the school. The Division Bench in its order dated 30.9.1991 had held that whatever order was passed by the Special Director was in relation to the finding recorded by the Chairman of the Board and the said order of the Special Director in no way had affected the decision taken by the Managing Committee of the School. The writ application, however, was dismissed and the Special Leave Petition against the said order dated 30.9.1991 in C.W.J.C.No. 373/1991 was also affirmed by the Apex Court dismissal of S.L.P.No. 17884-85/1991 by its order dated 6.12.1991. The petitioner, however, having still remaining without any appointment made by the Managing Committee and there being no order of approval of his service by the Bihar Sanskrit Shiksha Board had moved this Court for a direction to the respondents State and the Board for payment of his salary and the said writ petition, C.W.J.C.No. 4732/1993 was disposed of by an order dated 27.4.1994 wherein a direction was given to the concerned respondents to pay due salary to the petitioner in accordance with law and if necessary upon verification of the assertion of claim made by the petitioner in the writ application. The order dated 27.4.1994 in C.W.J.C.No. 4732/1993, however, did not enure to any benefit of the petitioner and he had again filed a writ application, C.W.J.C.No. 5647/1996 for payment of his salary which was disposed of by an order dated 5.8.1997 with a direction to the Special Director, Secondary Education and the 4 Chairman of the Bihar Sanskrit Shiksha Board to get up-to-date salary of the petitioner calculated and paid within a period of one month. The petitioner in fact thereafter was paid his salary under the threat of contempt, inasmuch as he has filed M.J.C.No. 763/1998, whereafter the Board had passed an order on 19.12.1997 approving the services of the petitioner with effect from 1.4.1990 and also making payment of his salary for the period 1.4.1990 onwards. The petitioner’s contempt application, M.J.C.No. 763/1998 in fact was disposed of on production of an account payee cheque of Rs. 88,248/ before this Court-. The petitioner in the writ application has now claimed that the Board has discriminated in the matter of giving approval as also making payment of salary, inasmuch as for other teacher such approval has been given from 1.4.1980 with consequential benefit of payment of salary but the petitioner has not been given the same benefit. The petitioner accordingly has assailed the decision of the Board by which he was given approval of service with effect from 1.4.1990 and has made prayer for not only dating back his approval from 1.4.1990 but also a consequential direction for payment of his salary from 1.4.1990. In this case there is no counter affidavit on behalf of the Board and Mr. A.P.Sinha, learned counsel appearing on behalf of the Board, has submitted that from the reading of the writ application itself it would be clear that the petitioner’s appointment was never made by the Managing Committee of the School and the approval of service of the petitioner also was granted by the Board with effect from 1.4.1990 in view of the 5 order passed by the Special Director, Sanskrit Education, dated 1.12.1990. He would accordingly submit that when the Board itself came into existence in the year 1981 there would be no question of petitioner being granted approval of his appointment by the Board with effect from 1.4.1980. In the considered opinion of this Court the Board has, clearly over stepped its limits. The School is a private recognized Sanskrit school. The power of appointment in such school is exclusively vested in the Managing Committee. From the pleadings on record it does not transpire that the Managing Committee had ever passed the resolution for appointment of the petitioner and the order of appointment dated 1.12.1978 at least being a communication of the Secretary to the Board of the School cannot be taken to be decision of the Managing Committee. As a matter of fact when the Special Director of the State Government had quashed the order of the Chairman of the Board it had not held that the petitioner was a validly appointed teacher by the Managing Committee of the School. It had only struck down the appointment of one of the teacher of the School, namely, Madhvendra Jha in whose case the Special Director had found that his appointment allegedly made by the Managing Committee was illegal, inasmuch as he did not possess the requisite qualification. As a matter of fact from the appellate order passed by the Special Director it also transpires that an adverse inference was drawn against the Secretary and the Headmaster of the school only because they did not produce the relevant records including the proceeding book of the Managing Committee as with regard to 6 appointments made in the school. None-the-less there is nothing in the appellate order which could have gone to show that the appointment of the petitioner was made in a valid manner by the Managing Committee of the school or that the Board was ever approached by the Managing Committee of the school to give approval of service which is the normal procedure for according approval of teachers of the recognized Private Sanskrit school. In that view of the matter, this Court would find it difficult to allow the prayer of the petitioner for a direction to date back the approval of his service from 1.4.1990 to 1.4.1980 or the consequential direction for payment of his salary and emolument from 1.4.1980. As a matter of fact once records would bear it out that the Managing Committee of the School of the petitioner had never appointed him there would be a big question mark on the very continuance of the petitioner in service. This Court, however, would not like to put its final word in this regard, inasmuch as it is the Board’s order dated 19.12.1997 passed by its Secretary who had given approval of service of the petitioner with effect from 1.4.1990. The question however would still be, that if there was no resolution of the Managing Committee appointing the petitioner as a teacher in the school nor there was ever any recommendation by the Managing Committee of the School through its Secretary to the Board to accord approval to the service of the petitioner how far the Board’s action of giving approval either under the threat of contempt of this Court or even otherwise would be sustainable in the eye of law? 7 In that view of the matter, this Court would remit the matter back to the Chairman of the Board who would now issue notice to the petitioner as also to respondents no. 7 and 8 to re- determine the issue of appointment and approval of service of the petitioner strictly in accordance with law. the Chairman of the Board while doing so will look into the records of the Managing Committee of the school and other connected records which may throw light on genuineness of the claim of the petitioner of his being appointed and continued in service by virtue of which he could become entitled either for approval of his appointment by the Board or for payment of his salary from the funds of the Government through the Board. It is made clear that if the petitioner or that the Secretary or the Headmaster of the Managing Committee of the School would not co-operate in the enquiry to be conducted by the Chairman of the Board, he will have the authority to stop payment of salary of the concerned erring person. The enquiry and the final order by the Chairman of the Board must be completed within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observations and directions, this application is disposed of. Let a copy of this order be handed over to Mr. A.P. Sinha, learned Counsel for the Bihar Sanskrit Shiksha Board for its strict compliance. (Mihir Kumar Jha,J.) Surendra/