Patna High Court - Orders
Md. Ekramul Haque vs The State Of Bihar & Ors on 4 December, 2013
Author: Navin Sinha
Bench: Navin Sinha, Shailesh Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.662 of 2013
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1. Md. Ekramul Haque Son Of Abdul Gaffar Resident Of Village- Kukroan,
P.O.- Amari Kukroan, Police Station- Dhamdaha, District- Purnia.
.... .... Appellant/s
Versus
1. The State Of Bihar
2. The Secretary, Department Of Human Resources Development, Bihar,
Patna.
3. The Special Secretary, Cum Director, Primary Education, Bihar, Patna.
4. The Regional Deputy Director (Education), Purnia.
5. The Deputy Development Commissioner, Purnia.
6. The District Superintendent Of Education, Purnia.
7. The Block Development Officer, Dhamdaha Block, District- Purnia.
8. The Block Educatino Extention Officer (Dhamdaha) Purnia.
9. The Mukhiya (Gram Panchayat Raj Mogalia, Purandaha-West) Under
Dhamdaha Block, District- Purnia.
10. The Secretary (Gram Panchayat Raj Mogalia, Purandaha-West) Under
Dhamdaha Block, District- Purnia.
11. Arvind Kumar Mahto Son Of Late Jageshwar Mahto Resident Of
Village- Dhamdaha (North), P.S.- Dhamdaha, District- Purnia.
12. The Member, Zila Shikshak Niyojan Appellate Authority, Purnia.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Anil Kumar
For the Respondent/s : Mr. Mohan Kumar Siongh, AC to GP 20
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE SHAILESH KUMAR
SINHA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
2 04-12-2013We have heard Counsel for the appellant and the State.
The present appeal arises from the order dated 8.4.2013 dismissing CWJC No. 2709 of 2010.The learned Single Judge held that the appellant holding the qualification of Maulvi could not be appointed on the general post of a Teacher.
Learned Counsel for the appellant did not dispute the correctness of his qualification as Maulvi and that he was appointed on the Patna High Court LPA No.662 of 2013 (2) dt.04-12-2013 2 post of general Teacher. However, learned Counsel submits that initially 441 posts of general Teachers were filled up including by persons holding Maulvi qualification. When the authorities realised this mistake, the 441 posts were all transferred to the general category. The authorities decided to adjust aggrieved general teachers to the extent they were denied appointment because of the same. Reliance has been placed on the letter of the Human Resources Department dated 9.9.2008 in this regard. It is submitted that a decision was taken that persons like the appellant would be deemed to have been validly appointed. The candidates who may have lost out in appointment as general Teachers because of the same may be considered for appointment accordingly. Strong reliance has been placed on the orders passed by a learned Single Judge in MJC Nos. 2398 of 2010 and 2399 of 2010. Additionally, reliance has also been placed on the orders of a learned Single Judge in CWJC No. 11019 of 2009 (Shabnam Ara & anr. Sahina Bano & ors) affirmed in LPA No. 1037 of 2010, against which a Special Leave Petition has been preferred by the writ petitioner and the Supreme Court has made query if accommodation of the petitioner therein was possible or not. The last prayer therefore is that the matter may be taken up after disposal of the Special Leave Petition.
Counsel for the State has opposed the appeal supporting the impugned order. It is submitted that the qualification for the post of Urdu Teacher and a General Teacher are completely different as prescribed in the Bihar Panchayat Primary Teachers (Appointment and Service Condition) Rules, 2006 (hereinafter referred to as „the Rules‟). The question for appointment of a person holding a Maulvi qualification as a General Teacher simply does not arise and is in teeth of the statutory regulations. It is not the case of the appellant that any post of Urdu Teachers had been advertised or included in these 441 posts.
Patna High Court LPA No.662 of 2013 (2) dt.04-12-2013 3
We have considered the submission on behalf of the parties. Rule 6 provides that persons holding Maulvi qualification can only be appointed on the post of Urdu Teacher. The qualification for appointment on the post of a General Teacher at the Panchayat level is prescribed separately in Rule 8.They are required to hold a Higher Secondary/Intermediate or equivalent qualification from a Government recognised educational institution in addition to a two years Teacher‟s Training Diploma or Certificate from an institution recognised by the NCTE, alternatively, holding qualification of B.L.Ed. It is therefore apparent that the question for appointment of a person holding qualification of Maulvi on the post of a General Teacher simply does not arise.
It is not a case of the appellant that in the transaction under which he came to be appointed vacancies for the post of Urdu Teachers had been advertised or included. The very induction of the appellant at the inception was therefore contrary to the law. In (2011) 3 SCC 436 (State of Orissa vs. Mamata Mohanty) with regard to an order illegal at its very inception incapable of validation or ratification by any subsequent act has been considered holding at paragraph 37 as follows:-
"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."
We fail to understand that if the very entry of the appellant in the service was by a process and procedure contrary to the law, how the Government can ratify or seek to validate it and that too on a post of General Teacher contrary to the statutory provisions. Patna High Court LPA No.662 of 2013 (2) dt.04-12-2013 4
The order in MJC Nos. 2398 and 2399 of 2010 does not deal with or consider the statutory provisions and proceeds on basis of certain Government instructions. No Court of law, in our opinion, can give any direction for enforcement of a Government instruction which on the face of it runs contrary to statutory provisions. In Sabnam Ara (supra), the facts were entirely different. The advertisement was for seven posts, two of which were meant for Urdu Teachers. Four persons were selected as Urdu Teachers having qualification of Maulvi. The question was that they could have been considered for appointment only against the two vacancies of Urdu Teacher. When this anomaly was discovered the Government nonetheless decided to absorb them on the post of General Teachers proposing to create separate additional posts for general teachers so that their appointments are not prejudiced. The learned Single Judge held:-
" The act of the respondent in the department of Human Resources Development Department, Govt. of Bihar, Patna is depreciable."
The writ petition was therefore dismissed affirmed in appeal. The factual basis of the controversy being entirely different in its very origin we do not consider it necessary to adjourn this matter awaiting the outcome of the Special Leave Petition.
We find no merit in this appeal.
The appeal is dismissed.
(Navin Sinha, J)
Snkumar/- (Shailesh Kumar Sinha, J)