IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.12209 of 2005 In the matter of an application under Article 226 of the Constitution of India. *** SMT.MUSARRAT JAHAN, wife of Ahsanul Hoda, Resident of Mohalla – Faizullah Khan, at Baitul Hoda Khan Chauk, P.O. Lal Bagh, P.S. Laheriasarai, District Darbhanga………….Petitioner Versus 1. The State Of Bihar 2. The Director, Secondary Education, Human Resources Development Department, Bihar, Patna 3. The District Education Officer, Darbhanga 4. Bihar Staff Selection Commission, Bihar, Patna through its Secretary 5. The Secretary, Bihar Staff Selection Commission, Veterinary College, Patna 6. The Managing Committee, H.B. Soghra Hasan Memorial Urdu Girls School, Darbhanga through its Secretary 7. The Secretary, H.B. Soghra Hasan Memorial Urdu Girl‟s School, Darbhanga 8. The Principal, H.B. Soghra Hasan Memorial Urdu Girl‟s School, Darbhanga………..Respondents *** For the Petitioner: Mr. Ganesh Pd. Singh, Sr. Advocate with Mr. Iqbal Asif Niazi, Advocate For Respondent Nos. 4 & 5: Mr. S.S. Sundaram, Mr. Vipin Kumar, Advocate For Respondent No.7: Mr. Md. Sufiyan, Advocate *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J. Heard learned senior counsel for the petitioner and learned counsel for the respondents. 2. Petitioner has filed this writ application for quashing of Memo No.856 dated 16.07.2005 issued under the signature of the - 2 - respondent-Secretary of the Bihar Staff Selection Commission (in short, “the Commission”) whereby the recommendation for grant of approval of her services as Assistant Teacher in Hajjin Begum Soghra Hasan Memorial Urdu Girl‟s School (in short, “the School”) in the district of Darbhanga has been refused, precisely on the ground that petitioner‟s appointment was for the post of geography teacher whereas she was graduate in science with honours in zoology. She has also challenged the consequential order issued by the Principal of the school dated 10.08.2005 (Annexure- 18) whereby, pursuant to the decision of the Managing Committee of the school, her services were terminated. 3. Apparently, petitioner having acquired qualification of graduation in science subject with honours in zoology had no qualification to be appointed as a teacher in the school to teach subject of geography. Hence, the decision of the said Commission as contained in Annexure-17 cannot be termed as altogether illegal. 4. However, in view of the submissions made by learned senior counsel for the petitioner, the background facts of the case leading to the recommendation of name of the petitioner to the - 3 - Commission for its concurrence requires to be noticed. Detailed background of the facts, which appear from the letters of the Headmistress dated 16.06.1999 and 10.02.2000 addressed to the District Education Officer, Darbhanga (Annexures 5 and 7, respectively) and the recommendation of the District Education Officer dated 15.02.2000 to the Vidyalya Seva Board (in short, “the Board”)(Annexure-8), show that at the time of establishment of the school as a minority institution, in January, 1972, petitioner had joined the school and since then she continued in the school and used to teach geography subject. The school was granted permission for establishment in 1978. As the petitioner was untrained at that time, Government did not accord approval to her service. Therefore, the Managing Committee terminated her services on the assurance to her that she will be given preference in appointment at the time of filling up future vacancy. 5. Subsequently, the management of the school felt need for geography teacher. Hence an advertisement was published in the “Indian Nation” on 23.01.1984 inviting applications from eligible candidates for appointment as geography teacher in the school. Three women applied and appeared at the - 4 - interview but none of them had geography as subject in her academic career. Therefore, the Managing Committee decided to re-advertise the vacancy which was again published in the “Indian Nation” in its issue dated 30.6.1985. This time also, no candidate applied with geography as subject. Accordingly, third time advertisement was published in the “Indian Nation” on 19.04.1986. This time also no one had appeared with geography as subject in his/her academic career. Since no eligible candidate could be available with geography as subject in spite of three advertisements, the Managing Committee thought it appropriate to recommend the name of the petitioner, who was also an applicant, for her appointment in the school considering her ability to teach, her manners, decorum and experience with the school and her style of teaching which the school administration had experienced since the very inception of the school itself. 6. Accordingly, the Managing Committee of the school in its meeting dated 15.06.1986 passed resolution for appointment of the petitioner on the post and accordingly, appointment letter dated 18.06.1986 (Annexure-1) was issued to her. During this period, petitioner had acquired training - 5 - qualification also. Therefore, vide Annexure-2, her salary was fixed in the graduate trained scale and she started getting her salary. However, in terms of the general order of the Department, the District Education Officer issued orders to the Headmistress of the school to stop payment of salary to all those teachers, who had been appointed after 02.10.1980, and whose services had not been approved by the Board. Salary of the petitioner was, accordingly, stopped with effect from February, 1999. 7. During this period, the Headmistress of the school had requested the District Education Officer to accord approval to the appointment of the petitioner through letter no.67 dated 4.4.87. The said letter along with all the records had been forwarded by the District Education Officer to the Secretary, Vidyalya Seva Board through his letter no.525 dated 9.7.1998 (Annexure-3). As no decision had been taken by the Board in the matter, salary of the petitioner was stopped with effect from February, 1999 in terms of the general direction of the Government in respect of the teachers appointed after 2.10.1980. It appears that in reply to the said recommendation of the District Education Officer, Board made some query which was forwarded to the - 6 - Headmistress of the school also. The District Education Officer also directed the Headmistress of the school to furnish all the details of the school and that of the petitioner so that they may be forwarded to the Board for approval. Accordingly, the Headmistress of the school vide her said letter dated 16.6.1999 (Annexure-5) submitted details in respect of the petitioner and another teacher to the District Education Officer. The said letter also mentioned that the petitioner had been working in the school for the last about 14 years and on account of her teaching ability and sincerity, she has been given „Sherwani‟ award. The District Education Officer, in turn, recommended the case of the petitioner to the Board for approval. However, on receipt of the said recommendation, the Secretary of the Board through his letter dated 5.01.2000 (Annexure-6) asked the District Education Officer to explain as to on what basis appointment of the petitioner could be approved. A copy of the said letter was sent to the Headmistress also who, again by her letter no.323 dated 10.02.2000 (Annexure-7), submitted details to the District Education Officer. The District Education Officer, in turn, submitted another report to the Board through his letter no.151 dated - 7 - 15.02.2000 (Annexure-8) dealing with, in detail, the case of the petitioner. He also reported that on his personal visit to the school, he found the petitioner teaching students of the school in very analytical way creating their interest in the subject. He also reported that on enquiry, he was informed that result of the school was best in geography subject and cent per cent students used to pass in geography subject. In the circumstances, he recommended for approval of her services. 8. It appears that the same Secretary of the Board made another query from the District Education Officer vide letter dated 14.06.2000 (Annexure-9) requesting him to explain as to how a graduate in science could be appointed against the post of geography teacher. In view of this repeated objection of the Board, the matter was placed before the Managing Committee. The Managing Committee in its meeting dated 10.09.2000 considered the application of the petitioner and resolved to recommend the case of the petitioner for approval of her services as general teacher in terms of Rule 4 (Ga) of the Bihar Nationalised Secondary School (Service Conditions) Rules 1983. The said resolution of the Managing Committee is annexed as Annexure-10 with the writ - 8 - application. The said resolution was thereafter forwarded to the District Education Officer for approval, vide Anenxure-10/A. The District Education Officer, in turn, recommended to the Board through his letter dated 27.12.2000 (Annexure-11) for approval of services of the petitioner as general teacher in the school. However, the Secretary of the Board through his letter dated 24.08.2001 again requested the District Education Officer to explain as to in what manner appointment of the petitioner could be approved by the Board. 9. To cut short the matter, suffice it to say that correspondences between the District Education Officer and the Board continued without any concrete result. In the circumstances, petitioner moved this Court through CWJC NO. 11272 of 2004 which was disposed of with a direction to the respondent- Board to take appropriate steps in the matter of grant of approval of services of the petitioner, vide Annexure-15. Thereafter, another request was made by the Managing Committee for approval of services of the petitioner, vide Annexure-16. However, finally, in view of the orders passed by this Court in the earlier writ application of the petitioner, the respondent-Commission, which had in the meanwhile - 9 - stepped into shoes of the Board, passed orders in the case of the petitioner, in reference to letter no.525 dated 9.7.1998 of the District Education Officer, rejecting the case of the petitioner, which was communicated by the Secretary through the impugned Annexure-17. The consequential order was thereafter issued by the Headmistress of the School, vide Annexure-18, terminating the services of the petitioner. 10. Learned senior counsel for the petitioner submitted that the school in question was admittedly a minority institution. Therefore, the Managing Committee of the institution had much more freedom to make appointment in the school on teaching as well as non-teaching posts. He submitted that, at the time of establishment of the school, there was dearth of teachers as the management of the school had no source of income and hence it was not in a position to pay salary to the teachers. At that point of time, petitioner agreed to serve the school on honorary basis. Since there was no requirement of a teacher of science subject in the school at that time, she was appointed to impart teaching of geography to the students for which she put in hard labour and acquired sufficient knowledge of geography - 10 - to teach the students of the school. She continued in the school thereafter. After the approval of the school by the authorities, the Managing committee did make repeated attempts, through 3 successive advertisements, to make appointment of qualified teacher of geography but they failed to get a suitable candidate. In those circumstances, since petitioner was teaching geography in the school since its very inception and had acquired sufficient knowledge of the subject, the Managing Committee thought it proper to appoint her on the post. Therefore, in special facts and circumstances of the case, service of the petitioner was fit to be approved in the school against the post of geography teacher. He further submitted that, considering technical difficulty in approval of her services, the Managing Committee of the school, vide its resolution as contained in Annexure-10, had recommended for approval of her services as general teacher in terms of Rule 4 (Ga) of the 1983 Rules. This recommendation of the Managing Committee was duly forwarded to the Board through recommendation of the District Education Officer. He submitted that this resolution of the Managing Committee and recommendation forwarded thereafter were not considered by the - 11 - Commission at all and in view of the direction of this Court passed in the earlier writ application of the petitioner, the Commission, without applying its mind to the later developments, rejected the case of the petitioner only in reference to letter no.525 dated 9.7.1998 of the District Education Officer as contained in Anenxure-3. He submitted that all the paraphernalia for regular appointment of the teachers had been adopted by the Managing Committee and, therefore, there was no infraction of Articles 14 and 16 of the Constitution of India in appointment of the petitioner except for the matter that she had no degree in geography. He also submitted that Rule 3 (Gha) of the Take Over Act, 1981, prescribes only minimum qualification for appointment of a teacher in a school without specifying qualification in particular subject. 11. A counter affidavit was filed in this case by the respondents. In sum and substance, the stand of the respondents is that petitioner‟s services could not be approved as she had no qualification for her appointment as geography teacher in the school, she being graduate in science with honours in zoology. Therefore, petitioner could not be appointed on the post meant for geography - 12 - teacher. 12. Learned counsel for the respondents has also submitted that there is no post of general teacher in the school and every post is identified by the subject taught in the school. Therefore, the recommendation of the Managing Committee was of no help to the petitioner and, her case has rightly been rejected by the Commission vide Annexure-17. 13. It is true that a teacher in a school has to have the qualification in the subject in which he has to impart teaching to the students. In that view of the matter, prime facie, appointment of the petitioner, a science graduate, on the post of geography teacher was not in accordance with law. However, this Court cannot shut its eye from the fact that, in spite of repeated advertisements and in spite of its best efforts, the Managing Committee of the school could not get a qualified teacher for being appointed as geography teacher in the school. It is not disputed that the petitioner had been working in the school since day one of its inception. The District Education Officer in his report as contained in Annexure-8 certified that the petitioner was an able teacher and was performing her duty by teaching geography to the students of the school very - 13 - efficiently creating interest in the students for the subject which was reflected from the cent per cent result in geography in the examinations. It may be that during this period, no body suggested the petitioner to acquire qualification in geography also, so as to make her eligible for consideration of her case for approval as geography teacher. But except for the degree, petitioner had sufficient knowledge of geography, which is not in dispute. In view of the technical difficulty, the Managing Committee, vide its resolution as contained in Annexure-10, did recommend for approval of services of the petitioner as a general teacher. Subsequent to this resolution, the District Education Officer recommended to the Board (now Commission) for approval of her services. Detail background of the facts leading to recommendation of the case of the petitioner to the Board (now the Commission) were available to the Board. Still this revised resolution of the Managing Committee and subsequent recommendation of the District Education Officer were not considered by the Commission and apparently the case of the petitioner has been rejected by the Commission only in reference to the original letter of the District Education Officer as contained in - 14 - Annexure-3. This makes the order of the Commission as communicated by Annexure-17 bad in law on account of non-application of mind to the subsequent developments and communication made to it and specially on account of non-consideration of the said resolution of the Managing Committee as contained in Anenxure-10 and recommendation of the District Education Officer as contained in Annexures-11 and Annexure-14. 14. In the circumstances, without expressing any opinion, either way, this Court considers it proper to remit the matter back to the Commission for consideration of the case of the petitioner, in the light of the said resolution of the Managing Committee as contained in Annexure-10 and subsequent recommendations of the District Education officer as contained in Annexures 11 & 14. In the peculiar facts and circumstances of the case, this Court feels it appropriate for the Commission to consider Whether petitioner‟s case can be considered against any other sanctioned vacant post in the school or as a general teacher in the school. It would be appropriate for the Commission to take into account the background facts also in respect of the appointment of the petitioner as reported by the - 15 - District Education Officer in his letter no.151 dated 15.02.2000 (Annexure-8) and take appropriate decision in accordance with law taking into account the overall aspect of the matter. The Commission, while considering the case of the petitioner afresh, in terms of the orders of this Court, shall not be swayed away by its earlier decision as communicated through Anenxure-17. 15. It is expected that the Commission will complete the exercise in terms of the orders of this Court within a period of three months from the date of receipt/production of a copy of this order along with a proper representation of the petitioner which she may file before the Commission latest within a period of one month. 16. In the result, this writ application is disposed of with the aforesaid observations and directions. (Jayanandan Singh, J.) Patna High Court, Patna The 7th July, 2010 N.A.F.R. (B.T.)