Patna High Court - Orders
Abdur Rauf vs The State Of Bihar & Ors on 14 July, 2014
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.889 of 2012
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1. Abdur Rauf Son Of Late Abid Hussain Resident Of Village-Malapara,
Police Station Abadpur, District Katihar
.... .... Petitioner
Versus
1. The State Of Bihar
2. The Principal Secretary, Secondary Education, Department Of Education,
Bihar, Patna
3. The D.E.O., Katihar
4. The Chairman, Bihar State Madarsa Education Board, Vidyapati Marg,
Patna
5. The Incharge Deputy Secretary, Bihar State Madarsa Education Board,
Vidyapati Marg, Patna
6. The Managing Committee Of Madarsa Islamia Rabbul Bux At Village
Abadpur Post Office + P.S. Abadpur, District Katihar Through Its
Secretary, Zeheeruddin Amad
7. Shahjahan Alam Son Of Late Jalajuddin Resident Of Village + Post
Office Palashi, P.S. Abadpur, Distt. Katihar
8. The Special Director, Secondary Education, Bihar, Patna
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Md.Najmul Hoda, advocate
Md. Qumrul Hoda, advocate
For the Respondent No.7 : Mr. Raj Nandan Prasad, advocate
Mr. Ansarul Hque, advocate
For the Respondent No.6 Mr. S. C. Mishra, advocate
For the Madarsa Board Mr. Rashid Alam, advocate
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL ORDER
8 14-07-2014This is an application seeking quashing of the order dated 22.12.2011 passed by the Principal Secretary, Education Department, Government of Bihar, whereby he has allowed the appeal preferred by respondent No.7 for appointment on the post of Alim (Madarsa Teacher) at Madarsa Islamia Rabbul Bux, Village Abadpur in the district of Katihar. It has further been Patna High Court CWJC No.889 of 2012 (8) dt.14-07-2014 2/6 prayed that the petitioner should be allowed to continue on the said post.
The issue involved is very short.
The Madarsa Islamia Rabbul Bux at Village Abadpur was established by local people of Muslim community of village Abadpur, which is affiliated to Bihar State Madarsa Education Board and has recognition of the State Government. It is a religious minority institution headed by the State Government. An advertisement was issued by the Managing Committee Of Madarsa Islamia Rabbul Bux at Village Abadpur inviting applications for the post of Alim, Maulvi and Intermediate Trained Teachers. The interview was fixed on 25.08.2002. The petitioner, respondent No.7 and others applied as per the advertisement. Apart from other qualification, it was provided that the candidate must be of the age between 18-35 years. The petitioner, at the time of filing of the application pursuant to the advertisement, was 43 years and therefore, he was not eligible as per the advertisement.
It is the petitioner's case that vide a decision taken on 18.08.2002 by the Managing Committee the age in case of the petitioner and one Md. Shoaib was relaxed, who were above the maximum age prescribed in the advertisement. The petitioner's age was relaxed on the ground that he had been teaching in the Patna High Court CWJC No.889 of 2012 (8) dt.14-07-2014 3/6 Madarsa for last 24 years. After relaxation of age, the petitioner was appointed. The appointment of the petitioner was challenged by respondent No.7, which finally went to the appellate authority, i.e., Principal Secretary, Education Department, Government of Bihar, who by his order dated 22.12.2011 held that the Managing Committee did not have the power to relax the upper age limit. He also held that if the Managing Committee was of the view that the age should be relaxed, a proper corrigendum should have been issued. He, accordingly, held the decision of the Managing Committee to be wholly illegal and unconstitutional.
Learned counsel appearing on behalf of the petitioner submits that the Principal Secretary, Education Department, Government of Bihar should not have held that the Managing Committee had no power to relax the age limit and relied upon an order of this court reported in 1999 (3) PLJR 363 ( Ahmad Noor vs. the State of Bihar & Ors). He has drawn my attention to paragraph 6 of the said judgement to contend that power to condone the upper age limit is with the Managing Committee and the Principal Secretary, Education Department, Government of Bihar has committed error of law while holding otherwise in the impugned order. He has further contended that the petitioner is going to retire very soon and, in such circumstance, the Principal Patna High Court CWJC No.889 of 2012 (8) dt.14-07-2014 4/6 Secretary should not have passed the impugned order.
Learned counsel for the Managing Committee (respondent No.6), on the other hand, supported the case of the petitioner and has contended that in the interest of the institution the Managing Committee decided to relax the upper age limit keeping in view the experience of the petitioner. He further submits that such decision of the Managing Committee has not been alleged to be tainted with malafide. He also submits that the Managing Committee had the power to relax the upper age limit which was rightly done in the facts and circumstances of the case.
Learned counsel appearing on behalf of respondent No.7, on the other hand, while supporting the impugned order, has contended that the Managing Committee acted in gross violation of Articles 14 and 16 of the Constitution of India while granting relaxation of age to the petitioner and one Md. Shoaib Khan. He contends that the petitioner was not eligible as per the advertisement and his application against such advertisement deserved to be rejected at the very outset. He further submits that had the application of the petitioner been not entertained, the respondent No.7 would have been appointed as first candidate.
By an order dated 17.01.2012, the operation of the impugned order dated 22.12.2011 was stayed and, thus, the Patna High Court CWJC No.889 of 2012 (8) dt.14-07-2014 5/6 petitioner is said to be functioning on the basis of the stay order. The law that the terms of the advertisement cannot be altered is not required to be repeated. It has been held consistently that rules of the game cannot be changed during the game itself. This is a gross case where the Managing Committee entertained the application of the petitioner who was admittedly overage by eight years compared to the upper age limit prescribed in the advertisement and was, therefore, disqualified to be considered. The plea that under the Rules there is no provision for fixing upper age limit and, therefore, fixing of upper age limit in the advertisement was not proper, cannot be accepted. If the authorities wanted to change any term of the advertisement, they, in all fairness, should have properly advertised it by way of corrigendum or otherwise so that other persons, similarly situated, could have also availed the opportunity of applying against the post.
In view of above, I do not find any reason to interfere with the impugned order. This writ application is, accordingly, dismissed. The respondents are directed to allow the respondent No.7 to join pursuant to the advertisement in question. The interim order dated 17.01.2012 stands vacated. If no appointment letter has been issued so far, such appointment letter must be issued in Patna High Court CWJC No.889 of 2012 (8) dt.14-07-2014 6/6 favour of respondent No.7 in the light of the order of Principal Secretary, Education Department, Government of Bihar dated 22.12.2011. It is also directed that the respondents will be required to allow the respondent No.7 to start functioning as Alim Teacher, accordingly, within a period of one month from today.
In view of the conduct of the Managing Committee, I impose a cost of Rs. 10,000/- (ten thousand) on the Managing Committee Of Madarsa Islamia Rabbul Bux at Village Abadpur. The amount of cost shall be deposited in the account of Patna High Court Legal Services Committee within a period of three weeks from today.
Let it be placed under the heading "to be mentioned" to report compliance as regards payment of cost.
(Chakradhari Sharan Singh, J) BKS/-
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