IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13831 of 2007 Miss Jayati Guha daughter of Sri Haridas Guha, resident of Vivekanand Colony, Rajnichak, District-Purnea. …..Petitioner. Versus 1. The State of Bihar. 2. The Secretary, Human Resources Development (Secondary, Primary and Adult Education) Department, Government of Bihar, Patna. 3. The Director, Primary Education, Human Resources Development Department, Government of Bihar, Patna. 4. The Special Secretary-cum-Director, Primary Education, Government of Bihar, Patna. 5. The Deputy Director of Education (Primary Education), Government of Bihar, Patna. 6. The Regional Deputy Director of Education, Purnea Division, Purnea. 7. The District Superintendent of Education, Purnea. 8. The Block Education Extension Officer, Purnea Block, Purnea. 9. The District Magistrate-cum-Collector, Purnea. 10. The Headmistress, Mahila Samiti School, Durgabari, Bhatta, Purnea. ……Respondents. ----------- For the Petitioner : Mr. Shyama Pd. Mukherji, Sr. Advocate Mr. Shanti Pratap, Advocate For the State : Mr. Prashant Kashyap, Asst. Counsel to AAG IV ---------- 02. 06.03.2009 Heard counsel for the petitioner and counsel appearing for the State. Petitioner has filed this application for quashing the order vide memo no. 1552 dated 28.08.2007 whereby the Special Secretary-cum-Director, Primary Education Human Resources Department, Govt. of Bihar has rejected the - 2 - representation which was filed by the petitioner in the light of the direction of this court in C.W.J.C. No. 9841 of 2006. Further prayer of the petitioner is for quashing the order issued by the District Superintendent of Education, Purnea dated 21.07.2006 contained in Memo No. 1123 whereby the approval accorded to the appointment of petitioner by the District Superintendent of Education, Purnea vide Memo No. 15532-34, dated 16.08.1989 and Memo No. 12598 dated 02.11.1994 has been cancelled. Petitioner has also prayed for a direction for appointment on the post of Assistant Teacher from 01.05.1981 with all consequential benefits. The school in question is a linguistic minority institution established in the year 1948. Being a minority institution recognized under Article 30 of the Constitution, it is being governed by its own Managing Committee for all administrative purposes. It is not in dispute that there should not be any appointment beyond the sanctioned strength and at the time of appointment the appointee must have requisite qualification. The sanctioned strength of the school was Principal plus three teachers. The requisite qualification - 3 - which a candidate needed for being appointed is that he/she should be Matric Trained Teacher. Petitioner’s case is that she passed her higher secondary examination in the year 1972 and B.A. Degree in the year 1976. She also completed her senior teachers training course vide certificate dated 18.07.1989. She joined in the concerned school against a leave vacancy in place of Miss Shikha Sen on 01.05.1981. The Managing Committee of the school had issued a letter of appointment dated 19.04.1981. The Secretary of the Managing Committee of the school had issued an appointment letter in favour of the petitioner dated 19.04.1981. Subsequently the Managing Committee vide Resolution No. 5 dated 25.06.1989 resolved to enhance the sanctioned unit and for approval of the sanctioned post, it was sent to the concerned department. In the meantime one vacancy occurred against the sanctioned post which held for Miss Shikha Sen. Since it was a vacancy against single post, Managing Committee resolved not to advertise the post. The Managing Committee appointed the petitioner against newly sanctioned unit w.e.f. 16.08.1989. At the time of her appointment against sanctioned unit on - 4 - 16.08.1989, petitioner was matric trained. Petitioner’s appointment was approved vide office order contained in Memo No. 15532-34 dated 16.08.1989 by the Deputy Superintendent of Education, Punea. It was further approved by the Deputy Director of Education, Primary Education Bihar, Patna vide letter no. 2229 dated 07.10.1994 by the order contained in Memo No. 12598 dated 02.11.1994. When the case of the petitioner was recommended for fixation of pay in the revised scale as per recommendation of the 5th pay revision in the prescribed format on 25.07.1994, objection was raised regarding petitioner’s appointment w.e.f. 01.05.1981. Three objections were raised:- (i) Petitioner did not possess requisite qualification on 01.05.1981 (ii) It was not against the sanctioned post (iii)The appointment was not made observing the formalities for appointment. Counsel for the petitioner has submitted that all three objections are arbitrary and non-existent order. So far the appointment of the petitioner in the year 1981 is concerned, she had already completed her teachers training but certificate was issued to her in the year 1989. Her - 5 - appointment in 1981 was against the leave vacancy. In the year 1989 she was not a trained teacher but in the year 1989, when her appointment was made against a sanctioned unit she had already completed her teacher’s training and fulfilled requisite criteria relating to qualification. Considering all these facts, the Managing Committee appointed her against sanctioned unit. Her appointment was approved by the District Superintendent of Education, Purnea and also by the Director, Primary Education. It has also been submitted that since a single post was vacant legally, it was not required to advertise the post for making appointment against a single post. The vacancy for appointment against a single post if not advertised, there is no irregularity. All three objections have duly been answered by the petitioner’s counsel. In the counter-affidavit filed on behalf of the State, it has been emphasized that for any appointment in the minority linguistic school, the candidate is required to fulfill the requisite qualification of being matric trained teacher. Petitioner had not completed her teacher training as such was not qualified. The petitioner did not meet the criteria - 6 - relating to requisite qualification for appointment. She was not a trained teacher in the year 1981. The post was also not advertised. No statement has been made regarding petitioner’s appointment against sanctioned strength. I find that petitioner’s initial appointment on 01.05.1981 was not an appointment on regular basis it was an appointment against a leave vacancy in place of Miss Shikha Sen. At the relevant time petitioner had not acquired teacher’s training degree but so far her appointment in the year 1989 is concerned, it was made against a sanctioned unit. By that time she had already acquired training degree. She was already trained teacher and she had requisite qualification for being appointed as assistant teacher in a minority institution. The objection regarding appointment without any advertisement is also not tangible because the appointment was going to be made for a single post and for a single post appointment it is not mandatory that it should be advertised. It is also not in controversy that petitioner’s appointment was duly approved by Deputy Superintendent of Education, Purnea as well as Director Primary Education in the year 1994. - 7 - On consideration of all these facts, I find there is no legal hindrance in giving approval to the appointment of petitioner w.e.f. 16.08.1989 as it has already been approved by the competent authorities in the year 1994. The order passed by the Special Director contained in Annexure-1 and the order passed by the Deputy Superintendent of Education, Purnea cancelling the approval accorded to petitioner’s appointment in the year 1994. Annexure-2, are quashed. The respondents are directed to fix the salary of the petitioner in the scale recommended by the Managing Committee or scale approved by the State on recommendation of fifth pay revision committee with all consequential benefits. This application is allowed. Vikash/- (Mridula Mishra, J.)