IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1371 of 2006 Anup Kumar Bhattacharya @ Anup Kumar Bhattacharia, son of late Bishawanath Bhattyacharya, resident of Mohalla Miscant Lant No.4, P.O. Ramna, Dist. Muzaffarpur. --------- Petitioner Versus 1. The State of Bihar. 2. Director, Primary Education, Bihar, Patna. 3. Deputy Director, Education, Bihar, Patna. 4. District Magistrate, Muzaffarpur. 5. Regional Deputy Director of Education, Muzaffarpur. 6. District Superintendent of Education, Muzaffarpur. 7. Secretary, Harisabha Middle School, Muzaffarpur. 8. Head Master Harisabha Middle School, Muzaffarpur. ---------- Respondents ------------- 4 14.12.2011 Having heard learned counsel for the parties and taking into account that the petitioner is an untrained teacher in a minority school, the prayer for payment of her salary and emoluments by way of aid by Government cannot be allowed only because the Government has made a provision for payment of salary to the untrained teachers in the government schools. Unfortunately, in this case, neither the Managing Committee nor the Authority of the State Government has filed their counter affidavit and the oral plea, which has been made Mr. Amber Nath Banerjee the learned counsel for the Managing Committee, is rather astonishing. He would submit that he was waiting for a supplementary affidavit to be 2 filed by the petitioner in terms of the order dated 5.5.2011 and that is how in a period of almost six years from the date of filing of the writ application, he has not chosen to file any counter affidavit. This Court fails to understand such submission advanced on behalf of the Managing Committee, which is primarily responsible in appointing an untrained teacher in the minority school in question despite accepting the terms and conditions imposed by the government and also giving written undertaking at the time of being declared a minority that it will not appoint any untrained teacher. If any dispute has arisen on account of non-approval service of the petitioner and non-payment of his salary it is only because he is a untrained, teacher and his impermissible appointment is the act of the Managing Committee. The Managing Committee, therefore, ought to have explained its stand and its silence is both questionable and deplorable. The reliance placed by Mr. S.C. Mitra learned Counsel for the petitioner on an order of this Court dated 27.7.1999 in the case of Ashutosh Banerjee Vs. State of Bihar 3 & Ors. (CWJC No. 6169 of 1998) also seems to be wholly misplaced. The submission of Mr. Mitra that since Mr. Banerjee was also an untrained teacher of the same school in which the petitioner is working would infact hardly be of any avail. The appointment of Mr. Banerjee was supposedly approved by the District Superintendent of Education, Muzaffarpur, who after 1976 had never been vested with power of approving the teachers of the minority school. The procedure envisaged for payment of salary of the minority school teachers as laid down by the State Government is plane and simple. The Managing Committee has to make appointment only of qualified trained teachers as per the specific rules laid down by the Government and only against sanctioned post. The Government’s liability of payment of salary will be only confined to such teachers who are qualified and are working against the sanctioned post. The Managing Committee having made appointment of such qualified and trained teaches has to submit the details of procedure undergone and the credentials of the persons appointed 4 whereafter the District Superintendent of Education has to forward the same to the Director of Primary Education for its approval by way proposition statement. The payment of salary of the teachers in declared minority institution can only be started with the specific prior approval of the Director of Primary Education. It is this aspect of the matter which will make the case of the petitioner distinguishable to the case of Ashutosh Banerjee, inasmuch as, if Ashutosh Banerjee was illegally given such approval by the District Superintendent of Education on temporary basis, that cannot be treated to be a healthy precedent by this Court for allowing payment of salary of the petitioner by perpetuating illegality and coercing the State government to act contrary to the age long settled decision of the State Government of making payment of salary to only trained teachers in minority school. Be that as it may, now when the petitioner is the creation of an illegal act of Managing Committee, which has chosen to appoint the petitioner despite his being untrained, it will be open for the petitioner 5 to claim his salary for the period he had worked from the Managing Committee, inasmuch as, it is the admitted case of the petitioner himself that when the District Superintendent of Education, Muzaffarpur had rejected the case for approval of service of the petitioner, on the ground of his being an untrained teacher his services were also immediately dispensed with by the Headmaster of the school by canceling his appointment on the post of teacher in school. With the aforementioned observations, this application is disposed of. Rsh (Mihir Kumar Jha, J.)