IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9828 of 2005 SANJAY SHARAD ……………………………………………………………………… Petitioner Versus THE STATE OF BIHAR & ORS. ……………………………………….Respondents For the Petitioner : Dr. S.N. Jha, Sr. Advocate with Mr. Asim Jha, Advocate. For the State : Mr. P. Tekriwal (S.C.-I) For the Respondents 4&5 : Mr. Durgesh Nandan, Advocate P R E S E N T THE HON’BLE JUSTICE MIHIR KUMAR JHA ************* Mihir Kr. Jha, J. In this writ application, the petitioner, an Assistant Teacher of Dayanand High School, Mithapur, Patna hereinafter referred to as the school has assailed an order of Respondent no. 5, the Secretary of the Managing Committee dated 18.7.2005 terminating the service of the petitioner in terms of decision taken by the Managing Committee in the meeting held on 10.1.2004 and 4.7.2005. Dr. S.N. Jha, learned senior counsel appearing on behalf of the petitioner had submitted that the appointment of the petitioner was made pursuant to an advertisement published in the newspaper followed by resolution of the Managing Committee dated 31.8.2000 which led to issuance of an appointment letter dated 1.9.2000 and as such, the impugned order terminating his service, on the ground that his services were not approved by Vidyalaya 2 Seva Board or that there was no clear vacancy on the post on which the petitioner was initially appointed, was factually incorrect and legally impermissible and thus beyond the power of the Managing Committee of the School. Counsel for the State as also Respondent no. 4 and 5 i.e. Managing Committee and its Secretary on the other hand have contended that this writ application is not maintainable because the impugned order has been passed by the Secretary of the Managing committee in terms of the unanimous resolution adopted by the Managing Committee. They would submit that such a writ application, therefore, would not be maintainable because such Managing Committee is not a ‘State’ within the meaning of Article 12 of the Constitution of India. Commenting further, the counsel for the Respondents have further submitted that the moment it is accepted that the appointment of the petitioner was not approved by the Vidyalaya Seva Board in terms of Section 18 of the Bihar Arajkiya Madhyamik Vidyalaya (Prabandh & Diyantran Grahan) Adhiniam, 1981, there would be no difficulty in holding that the petitioner had no valid appointment in the eye of law and as such, if the Managing Committee after its unanimous decision had resolved to remove the petitioner from 3 service, the same cannot be faulted with in any manner. Counsel for the Respondents in this context have also pointed out that there was no clear vacancy for appointment of the petitioner, inasmuch as, it was on account of a temporary vacancy created due to termination of service of one Suresh Sharma, an approved teacher of the school, that the petitioner was appointed but then as the termination/ discharge of Sri Suresh Sharma was not approved by the Vidyalaya Seva Board and Sri Suresh Sharma got reinstated in service of the school there was no vacancy left for the petitioner to be continued in service of the school. Supporting the counter affidavit of the Managing Committee, Sri Prabhakar Tekriwal, learned Government Advocate No.1 had also submitted that as a matter of fact, the petitioner was not even having the requisite qualification of being a trained hand which is a condition precedent for appointment of a teacher in a minority school in terms of the Circular of the State Government. In the light of aforesaid submissions of the counsel for the parties the first and foremost question would be as to whether this writ application against an order passed by the Managing Committee of a private and minority declared school is maintainable? Dr. 4 Jha, in order to satisfy this court on the preliminary objection with regard to maintainability of the writ application would straightway place his reliance on a judgment of Apex Court in the case of Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh & Ors. reported in 1984 (Supplementary) SCC 540. In the opinion of this Court, the reliance placed on the said judgment is wholly misplaced because therein there was a provision for a tribunal against the decision of the Managing Committee and the decision which was taken by the Deputy Commissioner and the Commissioner exercising power under Section 3 of 1969 Act in respect of the aided school was held to be those of the tribunal. It was in that context the Apex Court had held the writ application to be maintainable as the impugned order was passed by the tribunal. One would fail to understand as to how the said judgment would be of any avail for the facts of the present case wherein a unanimous decision of the Managing Committee of a minority school as communicated through its Secretary is being assailed in a writ application. It is true that the Secretary of the Managing Committee at that point of time was the District Education Officer but nonetheless that decision still 5 would be one of the Managing Committee, which by itself is not an authority much less a ‘State’ within the meaning of Article 12 of the Constitution of India. Obviously, the ratio of Manmohan Singh Jaitla case (supra) can not be made applicable to the facts of the present case. Dr. Jha next referred to the judgment of the Apex Court in the case of O.P. Gupta Vs. Union of India & Ors. reported in 1987(4) SCC 328. In the opinion of this Court, the reliance placed on the said judgment seems to be wholly misplaced, inasmuch as, that was the case of an Assistant Engineer in Central Public Works Department who was placed under suspension pending departmental enquiry and was eventually retired compulsorily. Thus, the said judgment in the case of O.P. Gupta (supra) is not an authority that the decision of the Managing Committee is amenable to writ jurisdiction. Dr. Jha then placed his reliance on the judgment of Apex Court in the case of Francis John Vs. Director of Education & Ors. reported in 1989 (Supplementary) (2) SCC 598. In the opinion of this Court, the ratio laid down by the Apex Court in the case of Francis John (supra) will also be of no assistance to the petitioner, inasmuch as, what was held therein 6 was that a writ application against an order of a Government Officer acting under administrative instruction in terms of Rule 74.2 of the Grant-in-aid Code was maintainable. There can be no difficulty in accepting this proposition that if the ultimate decision was taken by the Government or its officer either in terms of statute or even circular, such decision would no longer remain decision of the Managing Committee of the institution and as such, the writ jurisdiction against an order of the Government officer would be maintainable. Here, there is no such statute prescribing the District Education Officer to be the Secretary of the Managing Committee rather than District Education Officer is one of the members of the Managing Committee of a minority school being the Government representative. Such Managing Committee in fact is comprising of different members and in that view of the matter, merely because at that point of time the District Education Officer was made the Secretary of the Managing Committee and had issued the impugned order in terms of the unanimous decision of the Managing Committee, will not make the decision of the Managing Committee one taken by a Government Officer. It is this aspect of the 7 matter which would make the writ application of the petitioner absolutely distinct and different from one which was decided by the Apex Court in the case of Francis John (supra). As a matter of fact, this aspect of the matter that a writ application against a decision of the Managing Committee is not maintainable stands settled by a Division Bench Judgment of this Court in the case of Chandra Nath Thakur Vs. Bihar The Bihar Sanskrti Shiksha Board & Ors. reported in 1999(1) PLJR 529 wherein this Court after considering the decision of the Apex Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors. reported in AIR 1989 SC 1607 and K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu College of Engineering and Anr. reported in 1998 SC 295 had held the teacher of privately managing school even though financially aided by the State Government or a Board cannot maintain the writ application against an order of termination from service passed by the Managing Committee. The Division Bench of this Court for this purpose had relied on the judgment of Apex Court in the case of Executive Committee of Vaish Degree 8 College, Shamli Vs. Lakshmi Narain reported in AIR 1976 SC 888 as also in the case of Dipak Kumar Biswas Vs. Director of Public Instruction & Ors. reported in AIR 1987 SC 1422. The aforesaid view of the Division Bench in the case of Chandra Nath Thakur (supra) has been again reiterated by yet another division bench in the case of Trigun Chandra Thakur Vs. State of Bihar and others, in L.P.A. No. 670 of 1999, disposed of on 21.1.2008. The law, therefore, having been settled by two Division Bench judgments of this Court on this score, it must be held that the writ petition assailing the impugned order passed by the Managing Committee of a minority school is not maintainable in the writ jurisdiction of this Court under Article 226 of the Constitution of India. As a matter of fact, the termination of service of the petitioner cannot even otherwise be faulted with because the specific stand taken by the respondents in their counter affidavit that at the time of appointment of the petitioner, he was lacking training qualification and as such, was not qualified in terms of the eligibility for holding the post of teacher in a minority school, has not been disputed by filing any rejoinder affidavit. The petitioner has only 9 come out to say that after two years of his appointment, he is said to have become a trained hand. In the opinion of this Court, once this fact is admitted that at the time of appointment, the petitioner was not trained, his appointment was void ab-initio and could not have been cured because the Managing Committee had no power to appoint a teacher in the year, 2000 without his being a trained hand. In fact, it was for this reason that the Vidyalaya Seva Board on the proposal sent by the Managing Committee for approving the appointment of the petitioner had not accorded such approval. Such approval in fact is mandatory in view of Section 18 of the Bihar Arajkiya Madhyamik Vidyalaya (Prabandh & Diyantran Grahan) Adhiniam, 1981 which under Section 18 lays down that appointment of a teacher in minority school can only be done with the approval of the Vidyalaya Seva Board. Once this fact is admitted that the appointment of the petitioner was never approved by the Vidyalaya Seva Board in a span of almost five years, there would be no difficulty in holding that the appointment of the petitioner even otherwise was unsustainable and as such, the decision taken by the Managing Committee to dispense with the services of such person i.e. the petitioner 10 cannot be faulted with. This Court also must take note of the fact that even when the appointment of the teacher in a minority school has to be made in terms of Section 18 with the approval of the Vidyalaya Seva Board, the payment of salary has to be made against the sanctioned, approved and vacant post. Such payment of salary is being made by the Government and therefore, when the post held by the petitioner was actually that of Suresh Sharma who had earlier been removed from service in anticipation of approval of the Vidyalaya Seva Board, the post itself did not remain vacant as the Vidyalaya Seva Board did not approve the removal of Sri Suresh Sharma. Consequently, the petitioner could not be given the benefit of payment of salary from the Government Fund as it was Suresh Sharma who had to be reinstated in service. This aspect of the matter has been clearly explained by the successor Secretary of the Managing Committee Sri Prem Nath Rai in his separate counter affidavit filed on behalf of Respondents 4 and 5 which also has not been controverted by the petitioner by filing any rejoinder affidavit. All these matters taken together would, therefore, leave nothing for this court but to 11 hold and declare that the writ application filed by the petitioner basically against the decision of the Managing Committee is not maintainable and the decision of the Managing Committee in fact even on merits does not suffer from any infirmity. As with regard to claim of payment of salary for the period of working of the petitioner this Court would leave it to be raised by the petitioner and decided by the Managing Committee of the school and if the Managing Committee can pay salary to the petitioner from its own fund nothing said in this judgment will come in the way of the petitioner in getting the same but the resultant adverse decision, if any, of the Managing Committee would not be made subject matter of a writ application and the petitioner, if need be, will have only the liberty of approaching a competent Civil Court. That being so, this writ application, being devoid of any merit, must be and is hereby dismissed. Patna High Court Dated the 6th May 2009 Rsh/A.F.R. (Mihir Kumar Jha, J.)