IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.11725 OF 2006 ASHA RANI,W/O LATE OM PRAKASH, R/O VILLAGE BANKIPUR GURUKUL MAIN ROAD NEAR POLICE STATION, P.S.FATUHA DISTRICT PATNA. AT PRESENT ASSISTANT TEACHER DAYANAND BALIKA MADHYA VIDYALAYA, KHUSRUPUR, DISTRICT PATNA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, VIKASH BHAWAN,PATNA. 3.DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, VIKASH BHAWAN,PATNA. 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA. 5.SECRETARY, DAYANAND MIDDLE BALIKA VIDYALAYA, KHUSRUPUR, DISTRICT PATNA. ………………………RESPONDENTS. ----------- 08/ 02.09.2011 Heard counsel for the parties. The initial prayer of the petitioner in this writ application when filed on 21.09.2006 had read as follows:- “That this is an application for issuance of a writ in the nature of mandamus, directing and commanding the respondents to make payment of salary of the petitioner on the post of Assistant Teacher, on which post after her appointment made vide order dated 09.11.1991 and approval by the respondent District Superintendent of Education, Patna vide office order dated 03.03.1992.” During the pendency of this writ application when a counter affidavit was filed enclosing an order dated 02.12.2006 taking away the very base of the claim of 2 the petitioner for her continuation and/or payment of salary, an amendment petition was also filed challenging the aforementioned order of the District Superintendent of Education, Patna dated 02.12.2006 by filing I.A No. 2448 of 2007 and the amended prayer of the petitioner reads as follows:- “That this Interlocutory application is being filed permitting the petitioner to make amendment in the prayer portion of the writ application and after grant of such permission for issuance of a writ in the nature of certiorari to quash the office order containing memo no. 9352 dated 02.12.2006, issued under the signature of District Superintendent of Education, Patna, whereby giving reference of the filing of the present writ application, the approval of appointment of the petitioner has been cancelled and it has further been stated that ultimate result will be Annexure-5, has become ineffective and for issuance of a consequential writ n the nature of mandamus directing and commanding the respondents not to interfere with the duties and functions as also approval of the petitioner as Assistant Teacher of the School (Annexure-3) to the writ application.” Mr. Vishnukant Dubey, learned counsel for the petitioner has submitted that the earlier order approving the services of the petitioner having been passed by the District Superintendent of Education, Patna, could not have been 3 cancelled by the successor District Superintendent of Education, Patna, inasmuch as, it would amount to review and that too during the pendency of this writ application. while the petitioner was pressing his claim on the basis of the earlier order of District Superintendent of Education, Patna dated 03.03.1992 (Annexure-3), approving the services of the petitioner w.e.f., 06.11.1991. In that context, he has also relied on the aforesaid order of the District Superintendent of Education, Patna dated 03.03.1992 which according to him had already been acted upon by a subsequent order dated 09.11.1992, directing payment of salary to the petitioner in the pay scale of matric untrained teacher (Rs. 535- 965). According to him, the subsequent order passed by the District Superintendent of Education dated 02.12.2006 cannot be sustained either in fact or in law. In this regard, he has also placed reliance on an order of this Court dated 27.06.2005, in C.W.J.C NO. 2035 of 2000 (Mridula Kumari Sinha vs The State of Bihar and Ors), and 4 has contended that in similar circumstance Mridula Kumari Sinha, an untrained teacher alike the petitioner was allowed payment of salary, even though in her case also similar modus operandi was adopted by the Respondents who had also cancelled the similar order of approval of service of Mridula Kumari Sinha. Learned counsel for the State on the other hand with the help of stand taken in the counter affidavit has submitted that the School of the petitioner in which she claims to have been appointed in the year 1992 was a private school receiving financial aid from the State Government in which power of appointment was all along vested with its Managing Committee and that in such aided school the Managing Committee could not have appointed untrained teachers for making the State Government liable for payment of salary that too without following the prescribed procedure of appointment followed by advertisement in the newspaper and also possessing the requisite qualification of being a trained hand. In this regard, he has also submitted 5 that when the Managing Committee of the School was directed to produce certain papers for examining the authenticity of the appointment of the petitioner, the same was point black refused by the Secretary to the Managing committee. He has further explained that no right can be said to have been vested in the petitioner on account of the illegal order passed by the District Superintendent of Education, Patna dated 03.03.1992, inasmuch as, when the Managing Committee claimed to have appointed the petitioner w.e.f. 08.11.1991, the so called appointment was said to have been approved by the District Superintendent of Education, Patna even before that day by allegedly issuing order on 06.11.1991. He has also explained that the order passed by the District Superintendent of Education, Patna on 07.09.1992 was also wholly without jurisdiction, inasmuch as, the power of approval of proposition statement and fixation of salary of a teacher in aided school lies only with the Director of Primary Education and therefore the District Superintendent of Education, Patna 6 on his own could not have granted approval for payment of salary of the petitioner in the prescribed pay scale and at least on the basis of such an illegal order no no writ of mandamus can be issued by this Court for payment of salary to the petitioner. He has further submitted that the school in question as per the report of Block Education Extension Officer is not functioning for last 10 years and therefore, if there are no teacher teaching in such school there would be no occasion for this Court to issue a writ of mandamus for payment of salary of the petitioner. Mr. Dubey, in reply would submit that the issue of the petitioner being untrained teacher or there being availability of teachers in the district panel cannot be now made the ground for cancelling the approval granted by the District Superintendent of Education, Patna, inasmuch as, there was no approved panel after 1987 from which the appointment could have been made on the post of teacher in the aided school. He has further explained that by long association of 7 working on the post since, 1992 the petitioner has now got sufficient expertise in teaching which may be considered to be equivalent to her being a trained teacher even without acquiring qualification of teachers' training course. In that context, reliance has been placed on the observations made by this Court in the case of Mridula Kumari Sinha (supra). He has also contended that the plea of closure of the School has been taken by the respondents by way of a new ground which was neither mentioned in the impugned order cancelling the approval of the services of the petitioner nor in the counter affidavit and for the first time the respondents have come out with this additional plea in a rejoinder to the Interlocutory Application filed by the petitioner. In the considered opinion of this Court, the order passed in the case of Mridula Kumari Sinha(supra) would not cover the case of the petitioner, inasmuch as, a finding was recorded therein that Smt. Sinha was at least an under trained teacher and not that she was totally 8 untrained teacher. In the present case there is no dispute that the petitioner was an untrained teacher and still remains an untrained teacher. The status of an untrained teacher so far it relates to an aided school stands well settled, inasmuch as, the recognition of an aided school is subject to the condition that the school will not make appointment of any untrained teacher. The moment this court will find that the petitioner was/is an untrained teacher it will have no difficulty in holding that she was/is not possessing the requisite qualification essential for payment of salary from the funds of the State Government. The effort of Mr. Dubey to rely on the statutory Rule as it existed in the year 1991 has to be only appreciated in the background that those rules were for not meant for the aided schools and such relaxation was made for the teachers in Government Schools only where there was also a provision for such untrained teachers being sent in training in the Government teachers training college. Such facilities cannot be asked for and nor 9 given to the teachers of the aided schools who were basically the employees of the private school and had been extended the benefit of payment of salary from the Government fund on specified terms and conditions including its teachers to be trained for becoming entitled to receive payment of salary from the funds of the government. The School in which the petitioner got appointed despite being an untrained teacher is itself in the midst of controversy. True it is that such inquiry having been made by the District Superintendent of Education, Patna leading to his order dated 03.03.1992 could not have been interfered by the successor even if he has found certain anomalies in the same. Admittedly, the Director of Primary Education, the Authority which has been vested with the power of according permission for payment of salary to such teachers of the institution whose services have been reported to the District Controlling Authority namely the District Superintendent of Education at the time of taking decision for payment of salary. At 10 that stage the Director of Primary Education has full power not only to look into the manner of appointment but also other facets before the Government can start making payment of salary to such approved teachers. But that was not done in the case of the petitioner and the District Superintendent of Education, Patna who had passed the order on 03.03.1992 approving the services of the petitioner even before the date of her appointment by the Managing Committee seems to have passed the order also for payment of salary without obtaining prior approval of the Director of Primary Education. In that view of the matter, this court would hold that the impugned order as contained in Annexure-11 cannot be sustained on the ground of procedural fairness, inasmuch as, it would really amount to a rule of Jungle where one Authority in the co-lateral rank had passed the order approving the services of the petitioner whereas the successor in office had cancelled the same. True it is that in the case of administrative review, the 11 principles of substantive review cannot be made applicable but if the successor District Superintendent of Education had found any flaw in the approval of service accorded to the petitioner, he in all fairness ought to have referred the matter to the Director of Primary Education who is the real Controlling Authority. Considering all these aspects, this Court would also quash the consequential order of the District Superintendent of Education, Patna dated 02.12.2006 contained in Annexure-11 and the matter is remitted to Director Primary Education who while reconsidering the matter afresh must his fresh order without being prejudiced by the earlier findings arrived by the District Superintendent of Education, Patna in his order dated 02.12.2006. It would be also open to the Director of Primary Education to make the inquiry with regard to the functioning of the School as has been found by the Block Education Extension Officer, Khusrupur, Patna in his report dated 06.08.2011. He may also take any other circumstance into consideration for passing 12 his final order but only after giving opportunity of hearing to the petitioner. As the petitioner has been kept on waiting for almost five years before this Court for payment of her salary for the last 19 years this Court would direct the Director of Primary Education to pass the final order within a period of six months from the date of receipt/production of a copy of this order. In order to expedite the matter, this court would also give liberty to the petitioner to file her self contained representation enclosing all her evidence whereafter the Director of Primary Education will fix a date of hearing and after hearing the petitioner and/or her representation would pass his final order. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)