IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5497 of 2003 SHRI PRAKASH SHANDILYA s/o Kamla Kant Tiwari r/o Village Nasej, P S. Kudra, District- Kaimur…. Petitioner. Versus 1. THE STATE OF BIHAR through Commissioner-cum-Secretary, Secondary Education, Government of Bihar, Patna. 2. The Special Director Secondary Education Bihar, Patna. 3. The Bihar Sanskrit Shiksha Board, Bihar, Patna through its Secretary. 4. The District Education Officer, Rohtas. 5. The Secretary of the Managing Committee, Sada Shiv Sanskrti High School, Bhadaula Rohtas. 6. The Head Master Sadashiv Sanskrit High School Bhadaula, Rohtas. … Respondents. ------------- .3. 12.08.2010 Heard counsel for the petitioner, counsel for the State as also Bihar Sanskrit Shiksha Board. The prayer of the petitioner in this writ petition reads as follows: “1. That this is an application for issuance of appropriate writ rule or direction in the nature certiorari for quashing the order dated 30.12.1997 issued vide letter no. 2126 by the Special Director, Sanskrit Education, Bihar, whereby the petitioner’s regularization on a sanctioned post of science teacher vide letter no. 993 dated 1.8.1994 has been issued by the then Special Director, cancelled with retrospective effect of 1.8.1994 and this writ application is also for issuance of appropriate writ rule or direction in the nature of Mandamus commanding upon the respondent to treat the petitioner a regular science teacher of Sadashiv Sanskrit High School, Bhadaula, Rohtash, and to pay the regular salary due since 30.12.1997 and further the respondent be directed to allow the petitioner to work as a science teacher on a sanctioned post in view of the order contained in Annexure-7 2 to the writ application and further the arrears may be directed to pay along with 18% interest from the amount fell due to the actual date of payment.” Counsel for the petitioner initially had submitted that the order passed by the Special Director dated 30.12.1997 which has been sought to be assailed having not been supplied to him he has not annexed the same but as the said order also seeks to cancel the earlier order of approval and payment of salary of the petitioner passed by the Special Director vide her Letter No.993 dated 1.8.1994 the same cannot be sustained inasmuch as that would amount to termination of the services of the petitioner which could not have been passed without complying the principle of natural justice including issuance of a show cause notice followed by opportunity of hearing. It has been asserted that the said order dated 30.12.1997 was however passed without complying the principles of natural justice. This Court in order to find out the right of the petitioner has examined the contents of the alleged order of approval of service of the petitioner passed by Smt. Ritambhari Devi, the then Special Director as contained 3 in Letter No. 993 dated 1.8.1994 and from its perusal, it is found that in fact she had no jurisdiction to pass such an order. The petitioner was originally appointed by a Managing Committee of a private Sanskrit School on 3.1.1989 which was only recognized by the Bihar Sanskrit Shiksha Board and was receiving payment of salary for its teaching and non-teaching employees working against sanctioned posts as per staffing pattern and approved by the Board from the fund of the State Government made available through the Board. The petitioner’s alleged appointment by Managing Committee on 3.1.1989 was never by approved by the Board before the School was taken over by the State Government w.e.f. 18.12.1989 by Ordinance no. 32 of 1989. The services of the petitioner was also not recognized and approved by the State of Bihar by passing any order till the school remained a government school i.e. upto 30.1.1992 and in fact the petitioner went without payment of salary for the entire period upto 30.4.1992. The said ordinance no. 32 of 1989 and its successive replacing ordinance by which 429 schools remained government schools was however allowed to 4 elapse on 30.4.1992 and therefore from 1.5.1992 all these schools again became private Sanskrit school. The effect of lapse of temporary take over of 429 Sanskrit schools and the issue of payment of salary of such teachers of there schools whose payment of salary had been withheld w.e.f. 18.12.1989 came to be considered by a Division Bench of this Court in the case of Subhash Chandra vs. State of Bihar & Ors and its analogous cases, reported in 1994(2) PLJR 359 wherein it has been held that after the successive ordinance had elapsed on 30.4.1992, the schools again had become private school w.e.f. 1.5.1992. In such a situation, the order passed by the Special Director on 1.8.1994 either recognizing or approving the service of the petitioner or directing payment of salary was wholly without jurisdiction because on the date when the order was passed the only power vested in the Special Director was to hear an appeal under section 24 of the Bihar Shanskrit Shiksha Board Act. There was no appeal before the Special Director in the case of the petitioner and in fact from the reading of the order dated 1.8.1994 it would be clear that the Special Director had proceeded 5 to approve the services of a teacher of a private school for which neither there is any provision under the Bihar Shanskrit Shiksha Board Act nor under the rules or any executive instruction. In that view of the matter, the petitioner cannot claim any right on the basis of such abinitio void the order of the Special Director dated 1.8.1994 and consequently the challenge to the order dated 30.12.1997 seeking to only declare the said order dated 1.8.1994 to be void ab initio and not binding on the State Government is wholly without merit. In that view of the matter the prayer in this writ petition for quashing the order dated 30th December 1997, a copy whereof has been produced today by counsel appearing for the Board which is taken on record is wholly misconceived. It has to be however clarified that if the petitioner continues to the teacher of the school inasmuch as the appointment of the petitioner was made by the Managing Committee on 3.1.1989 and therefore if any proposal for his approval of service was submitted by the Managing Committee to the Bihar Sanskrit Shiksha Board, the same if not already considered by law 6 must be decided on its own merit without being prejudiced by anything said in this order. It also goes without saying that the question of payment of salary to the petitioner would squarely depend on the orders of approval of the service of the petitioner by the Bihar Sanskrit Shiksha Board and availability of vacant sanctioned posts under the staffing pattern. With the aforementioned observation and direction, this writ petition is dismissed. kanchan/ (Mihir Kumar Jha, J.)