C.W.J.C. NO. 15805 OF 2001 *** In the matter of an application under Article 226 of the Constitution of India. *** KAILASH THAKUR, SON OF SRI TANAK LAL THAKUR, ASSISTANT TEACHER IN SRI HARIGANGA TANTRA LATA SANSKRIT HIGH SCHOOL, SIMARIA, POLICE STATION, BARAUNI, DISTRICT BEGUSARAI …………………………. PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY,(SECONDARY EDUCATION), DEPARTMENT OF SECONDARY, PRIMARY AND ADULT EDUCATION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, VIKASH BHAWAN, PATNA 3. THE SPECIAL DIRECTOR (SECONDARY EDUCATION), DEPARTMENT OF SECONDARY, PRIMARY AND ADULT EDUCATION, BIHAR, PATNA 4. THE BIHAR SANSKRIT EDUCATION BOARD, BORING CANAL ROAD, PATNA THROUGH ITS SECRETARY 5. THE SECRETARY, THE BIHAR SANSKRIT EDUCATION BOARD, BORING CANAL ROAD, PATNA 6. SRI CHANDRA BHUSHAN PRASAD SINGH, ASSISTANT TEACHER, SRI HARIGANGA TRANTRALATA SANSKRIT HIGH SCHOOL, SIMARIA, POLICE STATION BARAUNI, DISTRICT BEGUSARAI 7. RAJEEV KUMAR, ASSISTANT TEACHER IN SRI HARI GANGA TANTRALATA SANSKRIT HIGH SCHOOL, SIMARIA, POLICE STATION BARAUNI, DISTRICT BEGUSARAI 8. THE SECRETARY, SRI HARIGANGA TANTRALATA SANSKRIT HIGH SCHOOL, SIMARIA, POLICE STATION BARAUNI, DISTRICT BEGUSARAI………………………… RESPONDENTS *** For the Petitioner: Mr.Bijay Kumar Pandey, Advocate For the State: Mr. Sunil Kumar Mandal, S.C. No.15 Mr. Bipin Kumar,J.C. to S.C. No.15 For Respondent no.6 : Mr. Siya Ram Shahi, Advocate For respondent no.7 : Mr. Ashok Kumar Choudhary, Advocate For Sanskrit Board: Mr. Surendra Kumar, Advocate *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH *** O R D E R 6. 27.07.2009 Heard learned counsels for the parties. This writ application has been filed by the petitioner for quashing Annexure-1, memo no.439 dated - 2 - 1.8.2001 issued from the office of the Special Director, Secondary Education to the Secretary, Bihar Sanskrit Shiksha Board (hereinafter referred to as “the Board”) intimating him that it has been found on enquiry that the petitioner was working as a surplus teacher in Hariganga Tantra Lata Sanskrit High School, Simaria, Begusarai and beyond the sanctioned strength of the teachers and therefore, he should be removed from service and in his place one Rajeev Kumar, respondent no.7, should be made permanent as Science Teacher and steps should be taken for recovery of the salary paid to the petitioner. It was also intimated by the said communication that Chandra Bhushan Prasad Singh, respondent no.6, who was found senior to the petitioner, will continue in the service of the School as before and he shall be entitled to payment of salary also. From Annexure-1 it appears that for coming to the conclusion that the petitioner was a surplus teacher in the school and was working beyond the sanctioned strength and was junior to Chandra Bhushan Prasad Singh respondent no.6, recommendation made by the Interview Board for their appointment in 1981 was solely relied upon in which respondent no.6 was shown at serial no.1 and the petitioner was shown at serial no.2 as per merit. 2. In the writ application, petitioner has raised several issues. He has contended that he was appointed as Assistant Teacher in the school on 20.7.1980 itself vide Annexure-2 but admittedly without pay. It is also contended that respondent no.6 was a - 3 - science graduate and, therefore, he was appointed in the school as Science Teacher. He has also contended that respondent no.7 was appointed by the Secretary of the school in 1985 without following the procedure for appointment and without post when one post of Science teacher in Sanskrit Schools was created by the Government only in 1988. 3. It is admitted by the petitioner, as also by respondent no.6, that both of them were temporarily appointed in the School in 1981 and the Managing Committee of the school recommended their names to the Board for approval. This is also admitted that the Board approved their services vide Annexure-3 for three months only and it directed the Managing Committee of the School to take steps for regular appointment on the posts. It is also admitted that pursuant to the said communication of the Board, an advertisement was published on 29.5.1981 and interview was held on 18.6.1981. The Interview Board interviewed the candidates and prepared a panel as per merit and recommended it to the Managing Committee. Since in the advertisement two posts of graduate trained teacher were advertised, respondent no.6, who was recommended by the Interview Board as first candidate and the petitioner, who was recommended as second candidate, were both appointed by the Managing Committee. The Managing Committee, after making appointments, recommended to the Board for approval of their services and vide Annexure-5, Board initially approved their services on probation basis for two years. After - 4 - completion of two years, Board confirmed their services on the recommendation of the Managing Committee vide Annexure-6 dated 2.4.1983 4. Thereafter it is contended by the petitioner that, as take over of the Sanskrit schools by the Government was in offing, the Secretary appointed respondent no.7 without any post. Petitioner has also contended that both respondent no.6 and 7 are sons of the Secretary of the School which fact has not been denied in the counter affidavit of respodnentno.6. But as a counter to this, respondent no.6 in his counter affidavit has asserted that the petitioner is a nephew of a member of the Managing Committee. Further in the writ petition petitioner has contended that the State Government sanctioned one post of Science Teacher in each Sanskrit school with effect from 1.12.1988 only. 5. Further facts are that in 1989 an Ordinance was promulgated for taking over management of 429 Sanskrit Schools throughout the State. However, as per the counter affidavit, the said Ordinance lapsed and the schools reverted to the status of private schools under the control of the Board. Hence, the alleged appointment of respondent no.7 by the Secretary of the School was approved by the Secretary of the Board as well as Board itself. However, before lapse of Ordinance, for the purposes of taking over of the school, the school in question was inspected by the District Education Officer, who submitted a report vide Annexure-7. In the report, he found the date of joining - 5 - of the petitioner as 1.8.1980. He also found that respondent no.6 was working in the school since 2.1.1981. But the report did not contain the name of respondent no.7 as teacher of the school. Subsequently, Government issued a letter before the lapse of the Ordinance in which it was made clear that only those teachers, who were found working in the school and who had drawn their salary from the fund of the Board prior to 18.12.1989, were only entitled to receive salary. In the list of the teachers of the school, the name of respondent no.7 was not there. Naturally, the appointment of respondent no.7 came under cloud. In the circumstances, he moved this court through C.W.J.C.NO. 5797 of 1993. The said writ petition was disposed of on 19.4.1994 in the light of the judgment passed in a batch of cases led by C.W.J.C. No. 7399 OF 1990. As the said judgment became applicable in the case of respondent no.7, he remained disentitled to receive salary as in paragraph 107 of the said judgment it was observed by this Court that teaching and non-teaching staff who were working within the sanctioned strength and staffing pattern, were only entitled to receive salary. Nonetheless, respondent no.7 filed contempt application before this Court vide M.J.C. No.1299 of 1994 in which the Board filed show cause with categorical stand that respondent no.7, who was not working in the school within the sanctioned strength, was not entitled for payment of salary. The contempt application was, accordingly, dismissed. In the meanwhile, pursuant to the said judgment of analogous - 6 - cases, State Government issued one letter stopping salary of all teaching and non-teaching staff of all the Sanskrit schools of the State pending enquiry and verification in respect of the incumbents working within the sanctioned strength and with regard to status of actual appointment of the incumbents in the respective schools prior to issuance of the said Ordinance. However, pursuant to the subsequent orders of this Court, the said order of the Government issued on 14.12.1995, was made to operate prospectively. Hence, due to this change of situation, it is said that respondent no.7 got his salary for certain period. But the status of respondent no.7 as a teacher remained in fluid state. Therefore, the Headmaster of the school filed an application before the respondent-Special Director as to which teachers, out of the three, were to be treated to be validly appointed and working within the sanctioned strength for the purpose of release of salary to them. On the said application from the Headmaster, respondent-Special Director issued notice to all the parties and stayed salary of the petitioner. Accordingly, all the parties appeared before the Special Director and presented their cases. Before the Special Director, recommendation of the Interview Board was placed to show that respondent no.6 had been recommended as first nominee and the petitioner was recommended as second nominee in accordance with merits. 6. It may be pointed out here that as per the stand of the parties, under the staffing pattern there - 7 - were only three posts of graduate trained teachers of modern subjects in the school. It is admitted position that out of the three, two posts of graduate trained teachers of modern subjects in the school were already filled up from before and only one post of graduate trained teacher of modern subject was available under staffing pattern for appointment. However, it appears that the management of the school advertised two posts and upon recommendation of the Interview Board, appointed both petitioner and respondent no.6 in the school. Obviously therefore, in the circumstances, only one, out of the two, could be treated as having been appointed validly and within staffing pattern, although services of both of them stood confirmed by the Board. 7. In the circumstances, the respondent- Special Director by the impugned order, while relying upon the recommendation of the Interview Board, held that respondent no.6 was senior to the petitioner and therefore, he was entitled to continue in the school within the sanctioned strength and the petitioner’s appointment was illegal as made against non-existent post, and therefore by the impugned order he directed the services of the petitioner to be terminated and for recovery of salary paid to him. 8. Facts of the case appearing from the pleadings, as noticed above, raise a lot of controversies and issues, both of fact and law. However, since the prayer of the petitioner is confined only to quashing of impugned order of the respondent Special Director and for a consequential direction to - 8 - continue the petitioner as a teacher in the school and pay his salary, this Court can conveniently confine itself to the examination of legality and validity of the said order of the Special Director. 9. From the reading of the impugned order it is apparent that the Special Director has based his findings in the impugned order solely on the recommendation of the Interview Board which placed the respondent no.6 at serial no. 1 and the petitioner at serial no.2. Petitioner has annexed the said recommendation of the Interview Board as Annexure-4, along with the chart of allotment of marks by the members of the panel on the basis of which respondent no.6 was placed above him in merit. In paragraph no.9 of the writ petition, petitioner has pointed out the anomalies in allotment of marks by the members of the panel and has also asserted that prior to the production of the said marks allotted by the Interview Board before the respondent-Special Director, petitioner was not aware of the individual marks given to the respective candidates by the Interview Board. It is obvious that since the petitioner was also appointed with respondent no.6 in 1981 and continued in the school uninterruptedly, he did not bother to find out as for what marks respondent no.6 was shown as first recommendee and petitioner was shown as second recommendee. It is only when, on the basis of the marks allotted by the Interview Board, the placement of the petitioner as second recommendee has affected his service career, he has questioned the said markings by - 9 - the Interview Board. It appears that respondent no.6 while filing the counter affidavit missed to notice the specific objections and grievances raised by the petitioner in paragraph 9 with regard to the said markings. Therefore, annexing more legible copy of the said mark sheet prepared by the Interview Board and consequent recommendation by the Board showing him at serial no.1 in merit and the petitioner at serial no.2, respondent no.6 in his counter affidavit has asserted that the impugned order of the respondent-Special Director was fully justified and legal. Counter affidavit has recently been filed on behalf of the respondent-Special Director also in which the impugned order passed by the Special Director has been justified as perfectly legal as having been issued on the basis of the recommendation of the said Interview Board. Therefore, the entire dispute between the parties revolves around the recommendation of the Interview Board placing the respondent no.6 at serial no.1 and the petitioner at serial no.2 in the merit list. 10. Had it been only recommendation of the Interview Board, this Court would have found the order of the Special director as perfectly valid and legal. However, due to sheer bad luck, respondent no.6 himself has annexed more legible copy of the marks sheet prepared by the members of the Interview Board at the time of the interview of the candidates which reflects the details of the marks allotted to 7 candidates who appeared in interview, including petitioner and respondent no.6. The markings given to the petitioner - 10 - and respondent no.6, as is evident from this mark sheet, speak for itself and it is appropriate to reproduce the markings itself given by the Interview Board to the petitioner and respondent no.6. Jh gfjxaxk ra=yrk laLd`r gkbZldwy] flefj;k ¼iks0½ ftyk & csxwljk;A fnukad 29-5-81 ds iznhi esa laKkfir nks Lukrd f”k{kdksa dh gqbZ vUrohZ{kk dk izfrosnu rk0& 18-6-81 Øe la0 vkosnd dk uke irk “ksS{kf.kd ;ksX;rk iz”kS{kf.k d ;ksX;rk dk;kZ uqHko O;fDrR o f”k{k.k “kS0 ,oa n{krk dqy izkIrkad eUrO; 1 &&&&& &&&&& &&&&& &&&& && &&& &&& &&& &&&& 2 &&&&& &&&&& &&&&& &&&& && &&& &&& &&& &&&& 3 &&&&& &&&&& &&&&& &&&& && &&& &&& &&& &&&& 4 &&&&& &&&&& &&&&& &&&& && &&& &&& &&& &&&& 5 dSyk”k Bkdqj xzke& “kkgiqj ¼csxwljk;½ ch0,0 vkulZ ¼fgUnh½ ch0 ,M0 3-5 o’kZ lkekU; lkekU; 3$3$4 $2$2 ¾ 14 f}rh; 6 &&&&& &&&&& &&&&& &&&& && &&& &&& &&& &&&& 7 pUnzHkw’k.k iz0 flag xzke& flefj;k ¼csxwljk;½ ch0,l0 lh0 ,u0lh0 lh0 dSEi lfVZfQds V x 1@2 o’kZ vuqHko izHkko& ”kkyh mÙke] foy{k.k ,oa ljkguh ; 1$2$1 $1$5$ 5 ¾ 15 izFke 8 &&&&& &&&&& &&&&& &&&& && &&& &&& &&& &&&& uksV %& nks Lukrd f”k{kd in gsrq vkB vkosnu i= vk, ftuesa lkr izR;k”kkh vUrohZ{kk esa mifLFkr gq,A vf/kekurk Øe ls muds uke bl izdkj gSaA& ¼1½ Jh pUnzHkw’k.k izlkn flag ¼2½ Jh dSyk”k Bkdqj ¼3½ Jh bZ”oj >k ¼4½ Jh fouksn dqekj ¼5½ Jh vkfnR; ukFk feJ ¼6½ Jh jke çdk”k jk;A 11. The interview chart with marks shows that marks were to be allotted to the candidates under five heads, namely, (1) educational qualification; (2) training qualification; (3) work experience; (4) personality; and (5) teaching acumen & efficiency. From the interview chart it appears that under the five heads, the petitioner was allotted 3+3+4+2+2 = 14 marks whereas respondent no.6 was allotted 1+2+1+1+5+5 = 15 marks. Apparently, whereas the petitioner was allotted marks under five heads total of which came to 14, respondent no.6 was allotted under six heads total of which came to 15. One more striking fact which appears from the chart is that in the column of teaching qualification of respondent no.6 there is cross which shows that he had no training qualification, still in - 11 - this column he has been allotted two marks. How could that be ? This anomaly in the allotment of marks to respondent no.6 is beyond comprehension of this Court and shocking. 12. Learned counsel for respondent no.6 tried to explain that under column no.5, teaching acumen & efficiency had to be considered and, therefore, for both items it was possible to allot separate marks which justifies allotment of marks to respondent no.6 under six heads. This submission of the learned counsel for respondent no.6 is not possible for this Court to accept, as in the case of no other candidate, column no.5 was treated to be divided under two sub-heads for allotment of separate marks for teaching acumen and efficiency. It is striking to note that among seven candidates interviewed by the Interview Board, it was only respondent no.6 who was allotted marks under six heads. Therefore, it is apparent that to favour respondent no.6, the Interview Board allotted marks to him beyond the scope of assessment under different heads to ensure that his total marks comes to the highest for recommending him as first candidate. Besides two marks allotted to respondent no.6 for training qualification when there was clear cross in that column against his name showing that he had no such qualification, is also beyond comprehension of this Court. 13. It appears that this aspect of the matter completely escaped the attention of respondent-Special Director when he considered the matter and based his - 12 - finding only on the recommendation letter of the Interview Board placing respondent no.6 as first candidate and the petitioner as second candidate. From examination of the chart of marks allotted to different candidates by the Interview Board, it is apparent that respondent no.6 was favoured by the Board to make him as first candidate. Therefore, in view of this anomaly apparent on the face of the chart of allotment of marks prepared by the Interview Board, it is not possible for this court to sustain the validity of the order of the Special Director based only on the recommendation of the Interview Board. . 14. In the circumstances, the impugned order of the Special Director (Annexure-1) is hereby quashed. Since the entire consideration was based on the recommendation of the Interview board and chart of the marks allotted to different candidates, it is held that had respondent no.6 not been bestowed with undue favour by the Interview Board, the petitioner would have been first candidate having achieved highest marks and, he would have been recommended as first candidate for appointment. Therefore, it is held that the petitioner is entitled to be treated as having been recommended as first candidate for appointment and validly appointed on the only vacant post within the staffing pattern for graduate trained teachers of modern subjects in the school at the relevant time. 15. In the circumstances, the order of recovery of salary of the petitioner is also bad in law and is also hereby quashed. In view of the consequences - 13 - of the impugned order (Annexure-1), the petitioner must not have worked in the school since then. Since this Court has found that the petitioner had suffered due to illegal and malafide act on the part of the members of the Interview Board and has remained out of service on that account since the date of issue of Annexure-1, this Court further holds that he shall be entitled to full salary of the period during which the same was stayed prior to the issue of Annexure-1 and also for the period he remained out of service as a consequence of issue of Annexure 1. 16. In the result, the respondents are directed to reinstate the petitioner in service in the School forthwith with all consequential benefits of continuity of service and pay his all arrears of salary with increments etc. as he may be entitled for, positively within a period of three months from the date of receipt/production of a copy of this order. 17. However, this Court is conscious of the fact that the State Government should not bear the burden of payment to the petitioner as respondent no.6 must have drawn his salary during this period against the same post. Therefore, this Court gives liberty to the respondent-Special Director to take steps for recovery of salary etc. which will be paid to the petitioner of this period, from anyone responsible for this anomaly cropped up in the marks of the Interview Board including the Secretary of the school who was admittedly father of respondent no.6, after complying with Principles of Natural Justice. This - 14 - Court is also conscious of the fact that the allegation that the petitioner is a nephew of a Member of the Managing Committee has not been denied by the petitioner. But from the interview chart it does not appear that undue favour was shown to him and, therefore, no fault can be found in allotment of the marks to him and his selection. 18. So far as validity of appointments of respondent no. 6 and 7 are concerned, petitioner has not made any prayer against them and, therefore, this Court refrains from making any observation with regard to their appointment and continuance. This aspect of the matter is left open for the respondents to go into, if necessary and take a final decision. 19. The writ application is, accordingly, allowed with the aforesaid observations and directions. B.T (J.N. Singh, J.)