IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.2668 OF 2007 ANIL CHANDRA DUTTA,S/O LATE BANKIM CHANDRA DUTTA, R/O AWANTIKA ROAD, BARDI DARIYAPUR, POLICE STATION JAMALPUR, DISTRICT MUNGER. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE DIRECTOR, PRIMARY EDUCATION, NEW SECRETARIATE, GOVT. OF BIHAR, PATNA. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA. 4.THE MANAGING COMMITTEE, GAURANG PATHSHALA,MINORITY PRIMARY SCHOOL, JAMALPUR, THROUGH ITS SECRETARY, POLICE STATION JAMALPUR, DISTRICT MUNGER. ………………………RESPONDENTS. ----------- 02/ 04.08.2011 Heard counsel for the parties. The prayer of the petitioner in this writ application reading as follows:- “That this is an application for issuance of an appropriate writ/writs, directing the District Superintendent of Education, Munger as well as the Headmaster of the Gaurang Pathsala Minority Primary School, Jamalpur, Munger (hereinafter referred to as the ‘School’) to pay salary of the petitioner who is the Assistant Teacher in the School in question, duly approved by the District Superintendent of Education with effect from February 1998 till date and current salary month to month in the scale of trained graduate teacher and from 23.04.1980 to 26.10.1994 as untrained graduate teacher, which has not been paid to the petitioner by the respondents inspite of continuously discharging his duty in the school as Assistant Teacher without and rhyme and reason. It is further prayed that the District superintendent of Education-respondent no. 3 be directed to take appropriate 2 action against the erring officer, who is responsible for non payment of the salary of the petitioner.” would essentially require determination of fact as to whether the appointment of the petitioner in minority School on the post of teacher was made in accordance with the Government instructions as it was prevailing on the date of his appointment. Mr. Tej Bahadur Singh, learned counsel for the petitioner would point out that when the petitioner was initially appointed by the managing Committee of the minority School namely Gaurang Pathshala, Jamalpur, a minority Primary School in 1980 he was an untrained graduate but he later on completed teachers training course in 1994 and therefore, even if his appointment from 1980 to 1994 would not qualify him for being recognized as a teacher of the School and the consequential payment of his salary for the aforesaid period due to the imposition of condition in the order granting minority status to the School on 15.12.1978 vide Annexure-1 to the writ application, the petitioner would still be 3 eligible for grant of salary from the date he became a trained graduate in the year 1994. Learned counsel for the State on the to the other hand would submit that there was no advertisement made by the managing Committee of the minority School in the year 1980 prior to appointment of the petitioner and thus when he was also an untrained graduate on the date of his appointment, the same was in violation of the conditions imposed in the letter of recognition of the School in question, as a minority institution dated 15.12.1978. He has also submitted that as the initial appointment of the petitioner was itself illegal he would not be entitled for payment of salary even after he had become a trained teacher. In this context, he has explained that the earlier order passed by the District Superintendent Of Education in favour of the petitioner was wholly without jurisdiction and in violation of the Government order which was accordingly rescinded by his successor in the office 4 order dated 02.01.2008 vide Annexure-A to the counter affidavit. In the considered opinion of this Court, while the petitioner’s appointment in minority School was to be made by the managing Committee and such appointment having been made, the managing Committee had to seek approval of the State Government or the prescribed Authority only for the purposes of recognition of such service making him or her eligible for payment of salary. The illegality therefore, attached to the appointment of the petitioner on the ground of his being untrained in the year 1980 may be in violation of the condition of grant of minority status imposed in the order dated 15.12.1978 (Annexure-1) but then such initial appointment of the petitioner of 1980 having been continued by the managing Committee even after 1994 his payment of salary cannot be denied on the ground of lack of prescribed qualification. The Government of course would not be liable to pay the salary in an untrained 5 teacher in a minority school and therefore, after the petitioner had passed the training examination and had acquired prescribed qualification of B.A trained in the year 1994, the authorities of the Education Department were required to reconsider the case of the petitioner for recognizing his service for the purpose of payment of his salary from the date he had acquired the training qualification. In making such consideration, the Government or its officials could have still rejected the claim of the petitioner on the ground of non-availability of a vacant post on which the Government was supposed to give grant in form of aid of salary and all posts under staffing pattern to be occupied leaving on no vacancy which the services of the petitioner could be recognized. It could have also held the appointment of the petitioner ineligible for grant in aid for payment of salary for any other allied reason but in no event the issue could have been kept pending. The order of the District 6 Superintendent of Education, contained in Annexure-A dated 02.01.2008, relied by the learned counsel for the State cancelling the earlier order of District Superintendent of Education dated 17.07.1995 even without issuance of a show cause notice and/or affording opportunity of hearing to the petitioner was/is a bad order. Though the reasons given therein may be correct, but if the successor District Superintendent of Education, Munger had found the order passed by his precessor to be bad, he had no power to make review of that order and infact he ought to have referred the matter to the higher Authority including the Director Higher Education for taking a final decision. This Court, therefore, would direct the Director Primary Education to consider the case of the petitioner for recognizing his service as a trained teacher only w.e.f., the date he has passed the training examination in the year 1994 and also extending him the benefit of payment of salary if the petitioner comes within the 7 sanctioned posts under staffing pattern on which the Government is releasing fund for payment of salary to the teachers of the school of the petitioner. It is made clear that, if for any period in the year 1994 onwards the total number of sanctioned post on which the Government was supposed to make payment of salary of had remained occupied or still remains occupied, the government will not be liable to pay salary to the petitioner even if he has become a trained teacher. If on the other hand there had been or even now a clear vacancy on the post of teacher under prescribed staffing pattern for the minority School in question against which the petitioner’s services could be recognized, his payment of salary should also be made from the date of his passing the teachers training examination or date of vacancy of a sanctioned post of teacher in the school, whichever is later. Needless to say that the Director Primary Education in the process of examination of the case of the petitioner would not apply any subsequent circular 8 including the 1993 circular requiring advertisement of the post by the managing Committee of the minority School because the appointment of the petitioner was admittedly made in the year 1980 and was also approved by the Officials of the State in form of earlier order of the District Superintendent of Education, Munger dated 17.7.1995 which was rescinded by the order of D.S.E., Munger dated 2.1.2008 Annexure-A to the counter affidavit only during the pendency of this writ application filed on 28.2.2007. This Court therefore while quashing the order dated 2.1.2008 as contained in Annexure-A to the counter affidavit would give liberty to the petitioner to approach the Director of Primary Education by filing a self contained representation enclosing a copy of this order whereafter a final decision would be taken by the Director of Primary Education strictly in accordance with law within a period of six months from the date of receipt/production of a copy of this order. 9 It goes without saying that if the services of the petitioner is recognized and he is found entitled for payment of salary, the consequential payment will also be tendered to the petitioner within next three months of passing of such order by the Director of Primary Education. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)