Patna High Court
Raj Keshwar Prasad Singh And Ors. vs State Of Bihar And Ors. on 27 April, 1987
Equivalent citations: 1987(35)BLJR804
JUDGMENT Prabha Shankar Misra, J.
1. This application could have been disposed of by a direction to the respondents to consider the case of the petitioners in accordance with the Government's decision incorporated in letter No. 3464-3514, dated 25-5-1984 of the Director (Secondary Education)-cum-Special Secretary, Department of Education, Government of Bihar, but learned Counsel, appearing for the respondents, has resisted its disposal by any consent order and hence the judgment.
2. The petitioners, it is not in dispute, are Assistant teachers in High School, Choukhanda, Chhitauli, police station Sasaram, district Rohtas. They were appointed as assistant teachers on 1-1-1972 in the school which was established in November/December, 1971, and started functioning from 1-1-1972. Under the then existing law, the Board of Secondary Education had to examine the viability and compliance of the regulations by the management of the school and grant permission to establish and thereafter extend recognition to the school for Government aids. The school was, accordingly, given permission to establish in the year 1971 and was recognised by the Board vide its memo No. 29878-84, dated 7-12-1977. The Special Board (the committee to recommend for recognition), constituted by the Education Board in its report dated 30-3-1977 noticed the petitioners as founder teachers of the school with their respective qualifications of B. Sc. (Biology group), B. Sc. (Math, group) and B. A. (Hons.) and the fact that petitioner No. 1 had appeared in the B. Ed. examination and petitioner Nos. 2 and 3 had completed the training but their examinations were yet to he held. In Rule 5 of the Government order No. 5172, dated 7-9-1952 reiterated vide letter No. 643-741, dated 10-1-1963 a provision has been made to treat any founder teacher's service approved with the recognition of the school. The petitioners, according to them, were entitled to hold their respective posts and were paid their salaries, accordingly.
3. On 9-8-1980, however, the Sub-divisional Education Officer 'addressed a letter to the Secretary, Bihar Secondary Education Board and forwarded the applications of the petitioners to the Board stating that with the recognition of the school, with effect from 7-12-1977, the petitioners should be considered for absorption as teachers. The Director-cum-Special Secretary replied to the effect that the Government order No. 757, dated 2-4-1980 extended recognition only to such teachers who were trained or had appeared in any training examination as students of a training college, which was recognised by the State Government and since the petitioners did not qualify under the said order of the Government, their services could not be recognised. In August, 1980, however, the management of the aided high schools were taken over by the State Government in terms of the Bihar Non-Government Secondary School (Management and Taking-over) Control Act, 1980. Government letter No. 756, dated 2-4-1980, referred to in the communication of the Director (Secondary Education)-cum-Special Secretary, categorised the untrained teachers as (1) the teachers serving in high schools recognised by 15-10-1977 and teachers who were undergraduate at the time of their appointment but had improved their qualification, to be recognised if they became trained in the session 1980-81 of the training course, and (2) untrained teachers appointed within the sanctioned strength and admitted to any Government teachers' training college or whose result had not been published due to certain unavoidable circumstances, to be recognised with effect from the date they passed the teachers' training examination. Apparently, the petitioners fell in the second category. They had been appointed within the sanctioned strength of the teachers in the school and were so found by the Special Board, but their services were not recognised.
4. In Om Prakash Choubey v. The Director (Secondary Education) cum-Additional Secretary, 1985 P. L. J, R. 1110 a Division Bench of this Court has noticed the relevant laws beginning from the Bihar High Schools (Control and Regulations) Act, 1960, the rules framed thereunder, the Bihar Secondary Education Board Ordinance, 1974 and successive ordinances and the Bihar Secondary Education Act, 1076 and the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 which repealed the 1976 Act and the rules, Regulations and instructions framed and issued from time to time and has said:-
...True, there had been no minimum qualifications prescribed for an Assistant teacher in a High School under 1955 Rules but in the rules framed under Section 8 (1) of the 1960 Act published in the Official Gazette (Extraordinary) on 25th October, 1972 a minimum qualification was prescribed stating in Rule 4 (3) thereof that except in cases of specialised disciplines like music, craft, classical literature etc minimum qualification of a teacher would be trained graduate. Neither' I960 Act nor rules framed thereunder ever gave to any person power to deviate from the rules as to the minimum qualification of the teachers. The minimum qualification prescribed under 1972 rules, therefore, could not be relaxed either by the State Government or the Board of Secondary Education. Since, however, there have been provisions made as to the appointment of Assistant Headmasters and Headmasters having minimum qualification of trained graduates in the 1972 Rules whereas such appointments could be given even to those who were not trained but simply graduates before enforcement of the 1972 Rules some provisions were required to be made for teachers working in the schools so that they could obtain requisite training and qualify themselves for prospective appointments as Assistant Headmasters and Headmasters. When such instruction came to provide to teachers working in the High Schools facilities for training etc., perhaps, intentions were obvious and genuine. Attempts not to interfere with the services of the teachers already appointed before 1972 Rules came in force, were/are under standable, but in the schools formally coming to exist after the enforcement of 1972 Rules, when the question of regularising services of the teachers appointed by the sponsors came up before the Board of Secondary Education and State Government, they issued instructions as if only to accommodate those who were recruited by persons not legally empowered to appoint and of those who were not qualified for such appointments. Once they started doing it those who could not obtain their favour came to the courts in a large number....
In Om Prakash Choubey this Court declined to issue mandamus, saying-
A mandamus is issued to enforce performance of a legal duty. la my opinion, the only duty which the respondents were/are required to discharge is to strictly adhere to the provisions of the rules. A Government constitutionally created to exercise executive powers is obliged to act only in accordance with law. It has no authority of its own beyond what is given to it by law. The respondents have failed to perform their duty to act in accordance with law and they have done so by regularising appointments of unqualified teachers and by not insisting to enforce the law. If a mandamus has to be issued, it has to be issued only to ask them to refrain from acting in violation of the law. No mandamus can issue to grant judicial sanction to such administrative drifts as shown by the respondents in the Circulars referred to above and in regularising appointments of unqualified teachers in the schools of the State.....
5. In C.W.J.C. No, 3395 of 1985 (Narendra Kumar Singh v. The State of Bihar and Ors. 1985 P. L. J. R. 1128. disposed of on 18-3-1985, a learned single Judge has held, however, that Om Prakash Choubey's case has not noticed the Division Bench judgment in Nand Kishore Prasad Mandal v. President, Bihar Secondary Education Board, 1977 P.L.J.R. 277. wherein it has been held that the 1972 rules vanished with the repeal of Bihar Ordinance No. 112 of 1974. A similar view has been expressed in C.W.J.C. No. 3748 of 1983 decided on 15-1-1985 by another single Judge. In Ram Ballabh Prasad Singh's case 1986 (34) B.L.J.R. 344 (F.B.) a Full Bench of this Court has, however, over-ruled the decision in C.W.J.C. No. 1315/85 (1985 P.L.J.R. 1128) and similarly the law laid down in C.W.J.C. No. 3748 of 1983 and approved the decision in Om Prakash Choubey's case.
6. Learned single Judges, who noticed non-consideration of the decision in Nand Kishore Prasad Mandal's case (supra) have, however, failed to notice that, that case was confined to the question, whether 1972 Rules were laid before the Legislature as required under the i960 Act or not, and whether in view of the provisions made in 1974 Ordinance and 1976 Act any appointment could be made in accordance with the 1972 Rules or not. T.K. Ghosh Academy's case was decided on the concession of the respondents who could not dispute the petitioner's claim that 1972 Rules were not placed before the Legislature, as required under Section 8(3) of IV 60 Act. It, thus, held that 1972 Rules had not come in force.
7. It is well settled that a rule validly framed is a part of the Act. Section 27 of the Bihar and Orissa General Clauses Act says that repeal of the Act may not amount to repeal of the Rules framed under it if they are not inconsistent with any specific provision of the new Act until rules are framed under the new Act formally repealing the rules either expressly or impliedly.
8. Nand Kishore Prasad Mandal's case was confined to the provisions of the 1974 Ordinance and not 1976 Act and prescribed the procedure for appointment of the teachers. 1972 Rules contained a different procedure and the procedure prescribed therein could not survive for the 1974 Ordinance and 1976 Act by making provisions therefor repealed it. No clarification, however, for different category of teachers was laid down in any part of the 1974 Ordinance or the 1976 Act. 1972 Rules contained such provisions and they continued to hold the field notwithstanding the enforcement of the 1974 Ordinance and the 1976 Act.
9. A cursory glance to the provision in Section 8 of 1969 Act is enough to assure that the framing of the rule and its enforcement was not made dependent upon the same having been placed before the legislature. It only contemplated amendments by legislature to be incorporated.
10. I have noticed the law which worked and partly works even to-day it has got to be tested with reference to the provisions in the Taking Over Act of 1981. Section 3 of the Act has provided for scrutiny of the cases of the teachers appointed in the schools taken over by the State and has conferred discretion to see whether the teacher appointed in the school before its take over was qualified for the said post or not and whether there was a valid selection or not. It is obvious that on the scrutiny, the petitioners failed because they had no qualification of trained graduate or higher and they could, for that reason, not be continued in the school as teachers. That one or the other of the petitioners had completed his training and was, thus, qualified for the appointment or one or the other had undergone the training but was yet to take his examination pursuant to the said training is wholly irrelevant, as qualification attached to the petitioners on dates later than the taking over of the schools could not be considered for the validity of the appointments on the date of the take over. The position would have been different and like Om Prakash Choubey (supra) this Court could have allowed the petitioners to satisfy the respondents that they were qualified on the date they were appointed in the school had this been a case covered by the Bihar Secondary Education Board Act, 1976. Had the said Act been not repealed, the provisions made therein about consideration of the cases of the teachers appointed by the Managing Committee of the schools or the sponsors of the school before they were duly recognised could have been of value to the petitioners. The discretion to consider the suitability of a teacher to continue after the take over of the school by the State, in the take-over Act, however, shall not permit consideration of their appointments made when no qualification was prescribed, that is to say, before 1972 rules came into force. The respondents shall be precipitating the vices that continued as noticed by this Court in Om Prakash Choubey (Supra) if they do not reject unqualified teachers and go strictly in accordance with the suitability of the candidates.
11. In view of my discussion above, I hold that the order contained in annexure '2' has got no infirmity. The petitioners have not been able to make out a case either for issuing a writ in the nature of certiorari to quash Annexure '2' or a writ in the nature of mandamus to regularise their appointments.
12. There is no merit in this application. It is, accordingly, dismissed.
S.S. Sandhawalia, C.J.
13. I entirely agree.