Patna High Court
Ram Naresh Prasad Nirala vs State Of Bihar And Ors. on 12 January, 1987
Equivalent citations: AIR1987PAT151, 1987(35)BLJR433, AIR 1987 PATNA 151, 1987 BLJR 433, 1987 BBCJ 266, (1987) PAT LJR 341
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT S.S. Sandhawalia, C.J.
1. Does the rationale and the ratio of the Full Bench judgment in Ram Ballabh Prasad Singh v. State of Bihar (1986 Pat LJR 373): (AIR 1986 Pat 218) extend mutatis mutandis to teachers as well under Section 3(3), Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981? Can a teacher, who was untrained on the date of the report of the Special Board, under Section 3(3) of the Act aforesaid, inflexibly claim to be considered and absorbed in Government service on the ground of the subsequent acquisition of the training qualification? These are the twin significant questions which have come to the fore in this reference to the larger Bench.
2. The facts deserve notice with relative brevity. The petitioner was appointed as an Assistant Teacher by the private Managing Committee of the D. N. High School, Chamhera Rasalpur on 10-2-1979. It would appear that this was even prior to the permission for the establishment of the said school which admittedly was granted under the Bihar Secondary Education Board Act, 1976, on 18-10-1979, It is equally common ground that the said school was not a recognised one. Prior to the taking over of the school under the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981, respondent 2, the Director of Secondary Education, constituted a Special Board incfuding the District Education Officer, Nalanda, for the purpose of inspecting the school. The said Board submitted its report on 10-2-1982. Admittedly even on that date the petitioner had not acquired the teacher's training qualification and his name was thus shown in the report at serial No. 10 as an untrained teacher. It was much later that on the 15th of April, 1982, the petitioner allegedly passed the examination and acquired the diploma in teaching. On the taking over of the school on the 20th of July, 1982, the petitioner, after consideration, was not absorbed in Government service. He unsuccessfully represented against the same and aggrieved by the rejection of the representation the present writ petition was filed on 29-1-1985. Therein, inter alia, it was claimed that by virtue of Section 4(2), Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 (hereinafter referred to as 'the Act') the services of the petitioner ipso jure stood transferred to the State Government. Some grievance was sought to be made on the ground that the respondent State had recognised the services of some untrained teachers as well in some other schools and the petitioner should be afforded the same indulgence.
3. At the threshold stage of admission the Bench noticed some conflict of precedent in the tangled fieid of the absorption of the school teachers and, therefore, referred the case to a Full Bench and that is how the matter is before us.
4. In the counter-affidavit filed on behalf of respondent 2, it is highlighted that the D.N. High School, Chamhera Rasalpur was merely a proposed school and on the date of the notification dated the 20th of June, 1982 for the take over the services of only such teachers were considered and accepted who were found both qualified and suitable. It is asserted that the petitioner was riot a trained graduate on the date of his appointment and was not even eligible to be appointed as a teacher in any recognised school. It is then pointed out that D. N. High School Chamhera Rasalpur, being not a recognised one, on a consideration the services of seven teachers had been approved for absorption. In the supple-mentary counter-affidavit it has, however, been categorically averred that the very initial appointment of the petitioner in the private school was an invalid one. For the purposes of the establishment of the school and subsequent recognition the Managing Committee of the petitioner's school had written to the Bihar Secondary Education Board on 22-1-1979 (vide Annexure A to the supplementary counter-affidavit) that no untrained teacher shall be appointed in the school. Nevertheless, contrary to the said undertaking the Managing Committee had later illegally and without jurisdiction as well as mala fide appointed the petitioner, who was untrained, as a teacher in the school on 10-2-1979. This being the admitted position the stand of the respondent is that the petitioner has not the remotest claim of being absorbed after the taking over of the school. It is further the stand that under Section 3(3) of the Act at best the petitioner could be considered against nine sanctioned post and even according to his standing in the school, he was at serial No. 10 in the report of the Special Board which disclosed the list of teachers and their seniority according to their appointment.
5. Somewhat curiously learned counsel for the petitioner again sought to raise the hackneyed argument that even in cases falling under Section 3(3) of the Act the teachers of the taken over school would ipso jure become Government employees in the same school by virtue of Section 4(2) of the Act. The Full Bench's judgment in Ram Ballabh Prasad Singh's case (AIR 1986 Pat 218) (supra) was sought to be distinguished on the ground that the same was applicable to Headmasters stricto sensu and was not attracted in the case of teachers.
6. To my mind, the argument aforesaid has only to be noticed and rejected and is indeed a submission of desperation. A cursory analysis of the Full Bench judgment in Ram Ballabh Prasad Singh's case (supra) would indicate that in fact it applied squarely to the case of teachers under Section 3(3). Indeed the language of Section 3(3) itself talks only of the posts of teachers. The question in the reverse before the Full Bench was whether the Headmaster would come within the ambit of the word "teacher" in the said section. There is thus no manner of doubt that the ratio of Ram Ballabh Prasad Singh's case (supra) is applicable in terms to teachers first and by way of extension brings in Headmaster within the ambit of the said term. Indeed, far from the said judgment not being applicable to the case of teachers itself, it stricto sensu first governs the teachers and then by necessary implication the Headmaster who, in the words of the Full Bench, being the head teacher, is brought into the fold. This, indeed, is manifest from para 16 of the said judgment in the following terms : --
"From whichever angle the matter may be viewed, it seems to be plain that both generically and on the definition clauses and the language of the statute, a Headmaster clearly comes within the wide ranging terminology of teachers in the second para of Section 3(3). The answer to question 1 is thus rendered in the affirmative and it is held that the Headmaster of an unrecognised secondary school before its take over shall be deemed to be a teacher of that school for the purposes of examination of his qualification and suitability (for appointment to Government service) under Section 3(3) of the Act."
7. Now once it is held that the aforesaid ratio is applicable to the case of the present petitioner, it is evident that the petitioner's case has no leg to stand upon. Indeed, proceeding further, the Full Bench has also held in no uncertain terms that the teachers of a school taken over under Section 3(3) had not automatically become the teachers of that school after its take over by virtue of Section 4(2) of the Act. The rationale for that conclusion cannot be given better than in the words of the Full Bench itself as under whilst pointedly noticing that what is said in the context of headmaster mutatis mutandis applies to teachers as well : --
"18. On a close reading of Sub-section (3). Section 3 and in particular the second para thereof, it appears to me that the said provision is the very antithesis of any theory of automatic appointment of Headmasters into Government service and the nationalised schools. A plain reading of the second para would indicate that it first hinges on the qualifications of the teachers working against the posts in an unrecognised school. The very eligibility for consideration and appointment to Government service would first depend upon the qualifications of such a teacher. Plainly enough, if the incumbent teacher does not satisfy even the test of the basic prescribed qualifications, the question of his appointment to Government service would have to be ruled out at the threshold. Any question of the automatic appointment or transfer of an unqualified teacher, to my mind, cannot simply arise under the second para. Secondly, despite the test of qualifications being satisfied and the teacher being eligible for consideration, a further requirement of suitability is laid out by the statute. A teacher may be qualified and eligible and yel not suitable for appointment into permanent Government service. It was forcefully highlighted on behalf of the State by the learned Advocate-General that Section 3(3) deals with unrecognised schools to the extent that they may have merrily as yet applied for permission of establishment. In such private institutions empirically managed by the proprietors or managing committees, the possibilities or favouritism and nepotism for appointment to the post of teachers and Headmasters were not only there but indeed rampant within the State. It was highlighted that though the incumbent Headmaster may be qualified yet he may have an atrocious service record and be an established drunk or a debauch. Is such a person to be automatically appointed on lake over in a nationalised school and become a permanent part of the educational set up of the State? The learned Advocate-General was thus right that yet a second hurdle of suitability has to be crossed despite the existence of the eligible qualifications. Thirdly, the test of qualifications and suitability has to pass through a crucible of a committee constituted by the State Government for the specific purpose of examining the same with regard to the unrecognised schools. Later on I would refer to the statutory instructions for the constitution of such a committee. It is only after such a statutory committee comes to a favourable conclusion with regard to the suitability of the incumbent that they would be considered for appointment in Government service. Fourthly, it appears from the language of the second para that the opinion of the committee is not conclusive for an automatic transfer of such incumbent into Government service. Such persons are then to be expressly appointed in Government service at the time of take over. It deserves pointed highlighting that the language employed here is not of any automatic transfer of service but an express fresh appointment by the Government. It seems plain that Section 3(3) and the second paras thereof far from visualising any automatic transfer of services provides for the specific pre-conditions before an incumbent of the post of a teacher in an unrecognised school is to be raised to the status of Government service in a nationalised school.
x x x x x "41, To finally conclude, the answer to question 2 posed at the outset is rendered in the negative. It is held that the Headmaster of a school taken over under Section 3(3) does not automatically become the Headmaster of the school after its take over under Section 4(2) of the Act."
In the light of the aforesaid discussion and enunciation, it necessarily follows that the rationale and ratio of the Full Bench judgment in Ram Ballabh Prasad Singh's case extend mutatis mutandis to teachers as well under Section 3(3) of the Act.
8. In view of the aforesaid conclusion what deserves highlighting is that herein it is the admitted position that the special board in its report had expressly found the petitioner at serial 10 and thus not even within the range of the nine posts which the State Government under the statute has to consider for absorption. The petitioner, therefore, has not even the semblance of a right in this context.
9. It was then contended on behalf of the petitioner that as regards the qualification and eligibility of a teacher the same is to be determined on the date of the notification for the take over of the school and not earlier. On that premise, it was contended that herein by the actual date of the take over notification the petitioner had secured a diploma for teaching and was thus not ineligible.
10. The aforesaid contention, to my mind, has to be merely noticed and rejected. The second para of Sub-section (3) of Section 3 of the Act is in the following terms :---
"The qualification and suitability of teachers working against 9 posts of the school one clerk and two orderlies of such school before the promulgation of this Act, shall be examined by a committee constituted by the State Government for the purpose and if found suitable for appointment in government service they shall be appointed in the government service along with taking over the management and control of the school."
it is evident from the above that the procedure prescribed thereby envisages the consideration of the qualification and the suitability of teachers much earlier than the actual take over by a committee (conveniently labelled as a special board) constituted by the State Government for the said purpose. The said committee or the special board is inevitably enjoined to give its opinion and report with regard to the suitability for appointment in government service of the said teachers. It is only on the basis of this evaluation and report that the government would later appoint such persons on the date of the take over of the institution. Plainly enough the issues of qualification, eligibility and suitability are considerations which arise much earlier and have to be opined upon by the said board in its report for the prior consideration of the Government which may later culminate in both the taking over of the school and the absorption of some of its staff in government service. To contend that the qualification and suitability of the teachers are to be taken note of as on the date of the take over notification itself appears to me as the classic example of putting the cart before the horse. The qualifications and suitability of the teachers and other staff are first the relevant consideration on which the take over of the school and the absorption of such staff is to take place and not that on or after the date of the lake over the qualification, etc., of the teachers and other staff should come up for consideration. It must, therefore, be held in no uncertain terms that the crucial point of time and, indeed, the outer limit for such consideration is the date of the report of the special board for the consideration of eligibility, qualification and suitability of teachers for absorption. There is no vested right in a teacher to claim that after the question of his qualification and suitability has been duly considered by the special board and reported upon, he had chosen to later qualify himself and his case should be re-examined on the date of the notification. Indeed, Section 3(3) does not visualise a second special board for consideration of any such cases on or after the date of notification.
11. To conclude on this aspect, it is held that a teacher who was untrained on the date of the report of the special board under Section 3(3) of the Act aforesaid cannot claim to be considered for absorption in government service on the ground of having subsequently acquired the requisite qualifications.
12. Lastly, even on the issue of the factual merits also the petitioner's case is unworthy of acceptance. In the supplementary counter-affidavit it has been averred in paras 9 and 10 thereof, which have not been controverted, that the managing committee of this private school had earlier given the clearest undertaking on 22-1-1979 (annexure A to the supplementary counter-affidavit) much earlier than the appointment of the petitioner that it would not appoint any untrained teacher for the school. Nevertheless, in the clearest violation of the said undertaking, the petitioner was appointed as a teacher when he was not even qualified therefor and against a post which was not a sanctioned one. The stand of the learned Advocate-General was thus right and impeccable that the very appointment of the petitioner at its inception was firstly illegal because no unqualified teacher could be appointed and secondly the same was in gross violation of the undertaking given by the managing committee of the school for the purpose of securing permission for the establishment thereof. Yet again, as has been noticed, the petitioner in the said school ranked at serial 10 in seniority (vide annexure 2) and was thus not even within the area of the consideration of the nine posts of teachers against which absorption could be clone.
13. Before parting with the judgment it may be noticed that one of the considerations for this reference to the Full Bench was some alleged conflict betwixt Nand Kishore Prasad Mandal v. President, Bihar Secondary Education Board, 1977 Pat LJR 277 and the decision in the unreported cast: of C.W.J.C. No. 3434 of 1983 Vijay Kumar Gupta v. The State of Bihar disposed of on 7-11-1983. Learned counsel for the parties are, however, agreed that the questions considered in the said decision are not the least relevant to the issue here and any discussion thereof would thus be wholly academic. I would, therefore, decline to go into that matter because observations in this context would, to my mind, be plainly obiter.
14. The writ petition is plainly without merit and is hereby dismissed. There will, however, be no order as to costs.
Lalit Mohan Sharma, J.
15. I agree.
S. Ali Ahmad, J.
16. I also agree.