Jharkhand High Court
Affan Quadri & 3 Ors vs State Of Jharkhand & Ors on 25 August, 2011
1
Writ Petition (S) No. 5858 of 2001
In the matter of an application under Article 226 of the Constitution
of India.
Affan Quadri & others ...... Petitioners
Versus
The State of Jharkhand & others ........ Respondents
For the Petitioners : M/s Manoj Tandon, Navin Kr. Singh,
Shiv Shankar Kumar, Advocates
For the Respondents : Mr. R. Mukhopadhaya, S.C.II
A. B. Minz, Advocate
PRESENT
HON'BLE MR. JUSTICE D. N. PATEL
th
12/Dated: 25 August, 2011
1. The present writ petition has been preferred against the order, dated
20th August, 2001 (Annexure2 to the memo of the present petition),
passed by the Secretary, Human Resources Development Department, State
of Jharkhand, Ranchi whereby, it has been directed by the respondents
that the services of the present petitioners are to be terminated by the
ManagementSchool because they are appointed illegally as they were
untrained, and secondly, for the reason that when they were appointed/re
appointed (upon getting the B.Ed qualification) their names, were not
included in the panel prepared by the District Education Establishment
Committee. For these two reasons, a direction was given to the
ManagementSchool to terminate the services of the present petitioners
and the petitioners are challenging this order, passed by the respondent
State authorities.
2. The issue raised in this writ petition to be adjudicated are as
under:
● Whether the respondentState authorities has power, jurisdiction
and authority, to give direction, by subordinate Legislation (i.e. by
a Circular, dated 31st December, 1982, enacted under Section 8 of
the Bihar NonGovernment Elementary School (taking over of
Control) Act, 1976 and that too making it effective from a
retrospective date i.e. from 1st January, 1971) to the Management,
(which is alleged to be a minority school), to terminate the
services of teachers, on the ground that when these Teachers were
2
appointed in the year 19781979, they were not trained Teachers
as well as they were appointed against unsanctioned post as well
as for the reason that their names were not reflected in the list of
candidates prepared by the District Education Establishment
Committee.
3. Factual Matrix:
● Petitioner No. 1 was appointed as a teacher on 11th February,
1979 in Kabiria Urdu Middle School, Zakir Nagar, Mango,
Jamshedpur which was granted recognition by the
Government in the year 196869, which was extended from
time to time and thereafter, it was granted permanent
recognition in the year 1972.
● When the petitioner no. 1 was appointed in the year 1979,
he was a graduate in Arts faculty and he cleared or passed
Teachers' Training Examination (B.Ed.) in the year 1982.
The services of the petitioner no. 1 was approved by the
Government in the year 1983 in Matriculation Trained Scale
as he has acquired B.Ed. Degree in the year 1982 and in the
year 1989 services of the petitioner no. 1 was approved in
I.A. Trained scale.
● Petitioner no. 2 was appointed as a teacher in the aforesaid
school on 1st March, 1979 and he cleared his teachers'
training examination (B.Ed. ) In the year 1988 and the
services of petitioner no. 2 was approved with effect from 1 st
April, 1989.
● Petitioner no. 3 was appointed as a teacher with effect from
8th November, 1979 in the aforesaid school and he has
cleared his Teachers Training examination (B.Ed.) in the
year 1987 and he
was approved
in the services in the
st
Intermediate Arts Trained Scale with effect from 1
April,
1989.
● Petitioner no. 4 was appointed on 1st August, 1990 and from
the very beginning petitioner no. 4 is a Graduate and has
cleared her Teachers' Training Examination (B.Ed.) and
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therefore, her services were also approved by the competent
authority with effect from the very same date, i.e. from the
st
date of her appointment, i.e. with effect from 1
August,
1990.
● All these four teachers have served in the aforesaid school
honestly, diligently, sincerely and to the satisfaction of the
respondents and neither any notice have been given to them
for their work being unsatisfactory nor regarding any other
misconduct.
● Petitioners were also paid salary by the Government up to
December, 1996 because the school in which they were
serving was a minority aided school.
● Thereafter, the government stopped paying the salary and
hence a writ petition, being C.W.J.C. No. 551 of 2001 was
preferred by the present petitioners before this Court for
getting salary from January 1997 onwards. This writ
petition was decided by this Court, vide order dated 8th
February, 2001, in which the Secretary, Education
Department, Govt. of Jharkhand was directed to decide the
claim of the petitioners in accordance with law and to pass a
speaking order. The said order is at annexure 1 to the memo
of the petition.
● In pursuance of the aforesaid direction, the order, dated 20th
August, 2001, was passed by the Secretary, Education
Department, Government of Jharkhand, whereby a direction
was given by the Government to the Management of the
Kabiria Urdu Middle School to terminate the services of the
petitioners. Thus, the petitioners, who preferred the petition
to get the salary, got a direction from respondent no. 2 for
termination of their services and hence, the order, dated
20th August, 2001, is under challenge by way of this writ
petition.
4. Arguments canvassed on behalf of the petitioners:
● As the petitioners were working as teachers since
4
19781979 in the minority school, the direction given by the
respondents in the impugned order is illegal and violative of
Article 30 of the Constitution of India.
● The circular, dated 31st December, 1982, bearing instruction
no. 2501, relied upon while passing the impugned order, is
absolutely illegal and could not have been issued under
section 8 of the Bihar NonGovt. Elementary School (Taking
over of Control) Act, 1976 (for the sake brevity "The Act,
1976").
● Assuming without admitting that there is a power with the
State Government under section 8 of The Act, 1976, it can
not be applied with retrospective effect because the
petitioners were appointed in the year 197879 and
Petitioner no. 4 was appointed and approved in the year
1990, she being already a graduate and B.Ed. Degree holder.
● Section 8 of the Act, 1976 is empowering the government to
remove the difficulties. Thus, it is a Henry VIII clause and
therefore, the removal of difficulties clause can not be utilized
as a substitute for rule making power as has been held in the
decision reported in AIR, 1988 Patna, 9 (FB). In the
impugned order a departmental instruction dated 31st
December, 1982 has been relied upon and looking to this
circular it appears that the same has been enacted under
section 8 of the Act, 1976 and therefore, under Section 8 of
the Act, 1976, the State of Government has no power,
jurisdiction and authority to issue the circular dated 31st
December, 1982 bearing Instruction No. 2501. Similar is the
fate of another circular in order dated 4th March, 1993 bearing
Govt. resolution No. 709, which is relied upon by the
Government. Henry VIII clause and the rule making power
are quite different and one cannot substitute the other.
● Counsel for the petitioners has also pointed out that the Govt.
has already approved the Matric Untrained Scale as well as
Intermediate Untrained Scale etc. meaning thereby that if any
5
teacher is appointed without having any B.Ed. Degree or
diploma in teacher's training, then he or she will be entitled to
untrained scale and no sooner a teacher acquires qualification
by clearing Teachers' Training Examination, he or she will be
entitled to trained scale, which may be a matric trained scale
or B.Sc./B.A. Trained Scale. Thus, it implies that initially there
can be a legal and valid appointment of a teacher even though
he was not a trained teacher. In the facts of the present case, it
is submitted by the counsel for the petitioners that all the
petitioners have acquired B.Ed. Degree within a couple of
years and they are not seeking even any salary etc. for their
initial period in service in this writ petition. The only reason
for passing the impugned order appears to be that when the
petitioners have been appointed in the year 197879, they
were untrained. This reason is not a valid reason in the eye of
law. This alleged circular of 31st December, 1982 can not be
given retrospective effect because petitioners were already
appointed in the year 197879.
● It is further submitted by the counsel for the petitioners that
looking to the impugned order, the second reason given is that
only out of the list of candidates, the Govt. has prepared,
teachers could have been appointed. This is, primafacie
dehors the law and the provisions of the Act, 1976. This
arbitrariness is reduced in writing by way of circular dated 4th
March, 1993 bearing Circular No. 709. This circular is equally
bad as the circular dated 31st December, 1982 because this
second circular is also issued under section 8 of the Act 1976
as Section 8 vests power in the Government to remove the
difficulties, like the Henry VIII clause. Under this clause no
detailed rule can be framed by the government and that too
with retrospective effect.
● It is further submitted by the counsel for the petitioners that
basically the circular dated 4th March, 1993 is a relaxation in
the process of selection of teachers, which was given in the
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circular dated 31st December, 1982. Earlier circular was also
issued under the Henry VIII clause. Thus, power to remove the
difficulties has been used as power to make the rules. In fact,
section 7 of the Act, 1976 empowers the Govt. to make the
rules and after enacting the rules, it shall be laid before the
House of the State Legislature as soon as possible, while it is in
session, for a period of 14 days and in case it is before expiry
of the session, this type of rules should be laid before the floor
of the house immediately when the session of the House is
going on. To avoid this type of process, State Government has
adopted a short cut route and has drafted out a circular dated
31st December, 1982 bearing instruction no. 2501 (which is at
Annexure 10 to the memo of this petition). This is
impermissible in the eye of law.
● Counsel for the petitioners submitted that same type of
circulars were issued in past also. They are four in number,
invoking the powers vested in the government under section 8
of the Act, 1976. All the earlier four circulars were challenged
before the Hon'ble Patna High Court. The matter was referred
to a Full Bench and ultimately, all these four circulars, which
were issued in exercise of power under section 8 of the Act,
1976 (which is like Henry VIII clause) were quashed and set
aside in the case of Krishnadeo Misra Vs State of Bihar and
others [AIR 1988 Patna 9 (F.B.)].
● Counsel for the petitioners has heavily relied upon this
decision and is also relying upon the following decisions.
I) 1988 PLJR 646
ii) 1992 (2) PLJR 512
iii) (1998) 6 SCC 674 and
iv) (2007) 1 SCC 386, especially paragraph no. 19
thereof, in which general principals relating to
establishment and administration of a Educational
institutions by the minorities have been summarized
to the effect that minority school management has a
7
right to constitute its own governing body. Likewise
they have their own right to chose the teaching staff,
teachers, lecturers/principals as well as their non
teaching staff and such other rights, i.e. to admit the
students etc. Counsel for the petitioners submitted
that the petitioners worked in aided minority
educational institute and therefore, there is no need
to select a teacher from the socalled panel of teachers
prepared by the government. Such type of restriction
is violative of Article 30 (1) of the Constitution of
India.
● Thus, it is submitted by the counsel for the petitioners that the
petitioners, who were working since 197879, were paid
salary also and after being approved, they were paid salary
regularly by the Govt. They were also given Matric Trained
scale as well as intermediate Arts Trained Scale. The
petitioners have been paid even the benefits of 5th Pay revision
with effect from 13th January, 1996 (as per annexure 9 to the
memo of the petition) and from January 1997 the respondents
stopped paying salary and therefore, C.W.J.C. No. 511 of 2001
was instituted, in which a direction was given to consider the
case of the petitioners in accordance with law and thereafter,
the impugned order has been passed for termination of the
services of the petitioners. This impugned order is based upon
illegal circulars and even if this circular, dated 31st December,
1982 is legal, the same is not applicable to the petitioners
because the petitioners were appointed much earlier in point
of time and just for the purposes of terminating the services of
the petitioners, an executive instruction can not be given
retrospective effect unless the Act permits. Looking to the
provisions of the Act 1976, it appears that the power under
section 8 of the Act, which empowers the Government only to
remove the difficulty, has been exercised for issuing circular
dated 31st December, 1982. From that point of view also the
8
circular is not binding upon the petitioners.
● Counsel for the petitioners also relied upon a decision
reported in 1988 PLJR 646 paragraph 52 onwards and it
has been held in paragraph 62 thereof that when a person is
validly appointed, he is legally entitled to receive the salary.
Such a right to receive salary tantamount to right to hold
property and this is falling within the Article 300 A of the
Constitution of India and therefore executive instruction given
by way of the circular dated 31 st December, 1982, assuming
without admitting that it is issued under article 162 of the
Constitution of India (in fact it is issued under section 8 of the
Act, 1976, which is absolute use of powers by the State
Government), is always subject to Article 300 A of the
Constitution of India and therefore, the accrued or vested right
in the petitioners under Article 300A can not be taken away
with retrospective effect because as per the circular, those
teachers, who were appointed on 1st January, 1971, who were
untrained, have no right to continue in their services (as per
paragraph 10 of the impugned order at annexure 2 to the
memo of the petition). It is submitted by the counsel for the
petitioners that this logic is itself illegal because executive or
subordinate legislation can not be given retrospective effect,
except where the specific powers should be conferred under
the statute and the provisions of the Act, 1976. No such
powers have been conferred upon the respondents to issue
executive instructions and that too under section 8 of the Act,
1976, which is like Henry VIII clause with retrospective effect
and hence also the impugned order at annexure 2 deserves to
be quashed and set aside.
● It is further submitted by the counsel for the petitioners that
as stay has been granted by this Court, petitioners are
working as teachers, but, the respondents are not even
paying the salary.
5. Arguments canvassed on behalf of respondent State
9
● Counsel for the State submitted that the petitioners'
appointment was illegal and hence a direction has been given
by the impugned order, dated 20th August, 2001 (annexure 2)
to terminate their services. Those, who were appointed
illegally, have no right to continue in their services.
● As per circular dated 31st December, 1982, which is at
annexure 10 to the memo of the petition, the person who has
not obtained Teachers Training certificate or B.Ed. degree is
illegally appointed as a teacher. Admittedly, the petitioner
no.1, 2 and 3 were not B.Ed. Degree holders and therefore,
their appointments were illegal as on the date of the
appointment.
● It is further submitted by the counsel for the State that as per
circular dated 31st December, 1982, the respondent no. 6
School ought to have been chosen a teacher from a panel
prepared by the District Education Establishment Committee.
Petitioners were not found in the list/panel so prepared by
respondents and hence their appointment is illegal and
therefore, rightly a direction has been given by the Secretary,
Human Resources Development department by the impugned
order to respondent no. 6 to terminate the services of the
petitioners.
● Counsel for the State has further submitted that the petitioners
were not appointed against the sanctioned strength and
therefore also their services could not have been continued by
respondent no. 6 and hence the direction to terminate their
services is absolutely just, proper, correct and legal.
● Counsel for the State has further submitted that respondent
State has never declared Kabiria Urdu Middle School, Zakir
Nagar, Mango, Jamshedpur as a minority school and therefore,
this school can not enjoy the immunities, which are attached
with a minority school unless it is so declared by the
Government and hence the arguments canvassed by the
counsel for the petitioners under Article 30 of the Constitution
10
of India has no applicability in the facts of the present case
and hence the petition deserves to be dismissed.
6. Having heard counsel for both sides and looking to the facts and
circumstances of the case, I hereby quash and set aside the order passed
by the respondent State authorities dated 20th August, 2001 at Annexure
2 to the memo of the petition mainly on the following facts, reasons and
judicial pronouncements :
(I) From the facts of the case, it appears that the school in question
i.e. Kabiria Urdu Middle School, Mango, Jamshedpur was granted
recognition in the year 196869 which was extended time to time
and was granted permanent recognition in the year 1972.
Petitioner No.1 was appointed as a teacher on 11th February, 1979
whose services were approved by the Government, in I.A. Trained
scale in the year 1989 as the petitioner no.1 was Graduate in Arts
faculty and passed Teachers Training Examination (B. Ed) in the
year 1982. Similarly other petitioners were also approved in the
services in the year 1989. Petitioner No.4 2as appointed on 1st
August, 1990 and from the very beginning her services were
approved by the competent authority. Thus, petitioners have
worked as teachers from 1979 and they were getting salary paid
by the respondentsGovernment upto December, 1996.
(II)It further appears from the facts of the case that from January,
1997, these petitioners were not paid salary and therefore, a writ
petition being C.W.J.C. No.551 of 2001 was instituted and it was
ordered by this Court dated 8th February, 2001 whereby the
Secretary, Education Department was directed to decide the claim
of the petitioners in accordance with law and to pass a speaking
order. RespondentsGovernment passed an order on 20th August,
2001whereby direction was given to the management of the
Kabiria Urdu Middle School to terminate the services of the
petitioners mainly for the reason that in pursuance of a circular
issued by the Government bearing No.2509 dated 31st December,
1982 has given certain executive instructions which were made
effective from 01.1.1971 that whenever a teacher is to be
11
appointed in the school, it must be appointed from the panel of
teachers prepared by the District Education Establishment
Committee and the secondly for the reason that as per the
aforesaid circular, which is made effective from 01.1.1971 that
unless a candidate has obtained teachers training examination
certificate, he will not be eligible for the appointment as a teacher
and it is mentioned in the impugned order dated 20th August,
2001 (annexure2 to the memo of the petition) that as the
petitioners have not fulfilled these two conditions, therefore, their
services were illegal and hence, liable to be terminated. Thus, the
bone of contention appears to be applicability of the circular
issued by the respondentsState bearing No. 2509 dated 31st
December, 1982.
(III) To examine closely the applicability of the aforesaid circular
dated 31st December, 1982, if the preamble of the said circular is
the same which is at annexure10 to the memo of petition, it
appears the same has been issued under Section 8 of the Bihar
NonGovernmental Elementary Schools (Taking over of Control)
Act, 1976 (herein after to be referred to as 'the Act of 1976' for the
sake of brevity). Section 8 of the Act of 1976 reads as under:
"8. Power to remove difficulties. if any
difficulty arises in giving effect to the
provisions of this Act, the State Government
may take such action or pass such order as
appears to it necessary for the purposes of
removing the difficulty."
(Emphasis supplied)
(IV) Thus, the aforesaid Section empowers the government to pass
such order as appears to be necessary for the purposes of
removing the difficulty. Thus, whenever a new statute is enacted,
there might be unforeseen difficulties in its actual and practical
application and to remove such type of difficulties, Section 8 has
been carved out in the statute. Only in such an eventuality,
Section 8 is to be invoked. But such a provision is not made as a
12
cloak or a camouflage for colourable exercise of power for making
statute, rules for which altogether different sections have been
enacted and different procedures have been prescribed. Section 7
of the Act 1976 reads as under:
"7. Power to make rules. (i) The State
Government may make rules not
inconsistent with this Act for carrying out
the purposes of this Act.
(ii) Every rule made under this section shall
be laid as soon as may be after it is made,
before each House of the State Legislature
while it is in session for a total period of
fourteen days which may be comprised in
one session or in two successive sessions,
and if, before expiry of the session
immediately following both the Houses
agree in making any modifications in the
rule or both the Houses agree that the rule
should not be made, the rule shall thereafter
have effect only in such modified form or be
of no effect, as the case may be, so however,
that any such modification or annulment
shall be without prejudice to the validity of
anything previously done under that rule."
(Emphasis supplied)
(V)It has been held by the Hon'ble Supreme Court in Madeva
Upendra Senai Vs Union of India reported in AIR 1975 S.C. 797
in paragraphs 45 and 46 as under:
"45. For a proper appreciation of the
points involved, it is necessary to have a
general idea of the nature and purpose of a
"removal of difficulty clause" and the power
conferred by it on the Government.
46. To keep pace with the rapidly
13
increasing responsibilities of a welfare
democratic State, the legislature has to turn
out a plethora of hurried legislation, the
volume of which is often matched with its
complexities. Under conditions of extreme
pressure, with heavy demands on the time
of the legislature and the endurance and
skill of the draftsman, it is well nigh
impossible to foresee all the circumstances
to deal with which statute is enacted or to
anticipate all the difficulties that might arise
in its working due to peculiar local
conditions or even a local law. This is
particularly true when Parliament
undertakes legislation which gives a new
dimension to socioeconomic activities of
the State or extends the existing Indian laws
to new territories or areas freshly merged in
the Union of India in order to obviate the
necessity of approaching the legislature for
removal of every difficulty, howsoever
trivial, encountered in the enforcement of a
statute, by going through the time
consuming amendatory process, the
legislature sometimes thinks it expedient to
invest the executive with a very limited
power to make minor adaptations and
peripheral adjustments in the statute, for
making its implementation effective,
without touching its substance. That is why
the "removal of difficulty clause" once found
upon and nicknamed as "Henry VII Clause"
scornful commemoration of the absolutist
ways in which that English King got the
14
"difficulties" in enforcing his autocratic will
removed through the instrumentality of a
servile Parliament, now finds acceptance as
a practical necessity, in several Indian
statutes of postindependence era."
(Emphasis supplied)
(VI) Thus, it has been held by the Hon'ble Supreme Court that
removal of the difficulty clause should be utilised only for the
purpose of removal of the difficulties and it cannot partake the
power of making the rules under Section 7 of the Act, 1976.
Henry VIII clause cannot be used as a rule making power. This
State has been bifurcated from the erstwhile State of Bihar from
15th November, 2000, and till today no rule has been framed
under Section 7 of the Act, 1976. Every time, shortcut method has
been adopted by the State authorities. The State of Jharkhand has
its own Law Commission. It appears that the State authorities are
not properly using its Law Commission for drafting of the new
rules to be enacted under Section 7 of the Act. It is now high time
for the State of Jharkhand to have its own rules to be framed
under Section 7 of the Act of 1976.
(VII) In fact, as per the decision rendered by the Full Bench of the
Hon'ble High Court of Judicature at Patna in Krishnadeo Mishra
Vs. State of Bihar and others reported in AIR 1988 Patna 9
(F.B.). Four similar types of circulars under Section 8 of the Act of
1976 have been quashed and set aside only on the ground that
Section 8 of the Act of 1976 empowers to remove difficulties
which cannot be used as a power to make the rules. Section 8 is
like Henry VIII clause which is to be utilized for altogether
different purposes as stated herein above. Certain contingencies
might be unforeseen when the statute is enacted. Only those type
of eventualities can be resolved by Henry VIII clause, but the rule
making power is altogether different which is envisaged under
Section 7 of the Act of 1976. If the impugned circular bearing
no.2501 dated 31st December, 1982 is looked closely, it gives even
15
measurement of the classrooms. In Clause 2(iii)(a) even the area
of the land, etc has also been given for the establishment of the
primary as well as the middle school. There are provisions for
library, etc also in the aforesaid circular. All these could not have
been issued under Section 8 of the Act of 1976.
(VIII)Assuming without admitting that this has not been issued under
Section 8 of the Act of 1976, but they are executive instructions
issued under Article 162 of the Constitution of India, then also the
same is not applicable to the present petitioners mainly for the
reason that whenever any executive instruction is issued, unless
they are issued under Article 309 of the Constitution of India, it
cannot be given a retrospective effect. Only under the proviso of
Article 309 of the Constitution of India, if the rules are enacted
then only retrospective effect can be given. There is nothing to
show that before issuing the circular in question which is dated
31st December, 1982, all these requirements of making a rule in
terms of proviso to Article 309 of the Constitution of India were
satisfied.
(IX) It has been held by the Hon'ble Patna in Smt. Pratibha Singh &
anr Vs. State of Bihar & Others reported in 1988 PLJR 646 in
paragraphs 56 and 57 as under:
"56. It is well known that a rule may operate
retrospectively only if the same issued in terms
of proviso to Article 309 of the Constitution of
India. There is nothing to show that before
issuing the circular in question all the
requirements for making a rule in terms of
proviso to Article 309 of the Constitution of
India were satisfied. It has been noticed
hereinbefore that the said rule could not even
have been made under section 8 of the 1976
Act, but can at best be treated as an executive
instruction.
It is well known that such executive
16
instruction framed by the State of Bihar in
exercise of its power conferred upon it under
Article 162 of the Constitution of India cannot
be given a retrospective effect.
57. Further, it is also a well settled principle of
law that normally a subordinate legislation
operates prospectively unless power is
conferred upon the rule making authority by
reason of the provisions of the statute itself to
frame a rule with retrospective effect.
Reference in this connection may be made to
Life Insurance corporation of India vs.
Escorts Ltd. And others (1986 Vol.1. S.C.C.
264)
It is also well known that terms and conditions
of service cannot be altered with retrospective
effect. Reference in this connection may be
made to T.R. Kapur and others vs. State of
Haryana and others (1986 Supplementary
S.C.C. 584) , ExMajor N.C. Singhal vs.
Director General Armed Forces Medical
Services, new Delhi and another (A.I.R. 1972
S.C. 628), Union of India and others vs M.
Ravi Varma and others (1972 Vol. 1 S.C.C.
379) and Shyam Dayal Panday vs. The State
of Bihar and others (1976 Vol. 1 S.L.R. 407).
(emphasis supplied)
view of the aforesaid decision, circular No.2509 dated 31 st
(X)In
December, 2002 which has been given retrospective effect from
01.1.1971is absolutely arbitrary, illegal and dehors the power of State authorities.
(XI)In the facts of the present case, all the petitioners i.e. petitioner nos. 1 to 3 were appointed in the year 1979; their services were confirmed as stated herein above; they were also paid salary up to 17 December, 1996 and thereafter upto September, 2001 by the State Government. The circular dated 31st December, 1982 is issued after the appointment of petitioner nos.1 to 3. (XII)It further appears looking to the impugned order that as the petitioners were not appointed from the panel of teachers prepared by District Education Establishment Committee and therefore, their appointment is illegal. This contention of the State is not accepted by the Court mainly for the reason that the circular cannot be given effect to from 01.1.1971. (XIII) One more reason has been given in the impugned order that when petitioner Nos.1 to 3 were appointed, they were not trained teachers. This contention of the State is also not accepted by the Court mainly for the reason that there is circular issued by nd respondentState on 2 May, 1980 bearing no.1167 which empowers the appointment of a teacher who is untrained and he will be entitled to scale of untrained teacher. Untrained teachers' scale was in existence at the relevant time. Thus, the Government itself recognized the services of the untrained teachers by granting them scale of "Untrained teacher". It has been held by the Hon'ble Patna High Court reported in the case of Smt. Pratibha Singh & anr Vs. State of Bihar & Others reported in 1988 PLJR 646 in paragraph 52(A) as under:
nd "52A. Even from a letter dated 2 May, 1980 being no.1167 issued by Sri Narendra Pal Singh, Special Secretary of the State of Bihar (Department of Education) to the Director (Elementary Education) Bihar, it appears that the State Government itself directed that all the trained teachers shall be paid salary in the scale of pay admissible to a matric trained teacher but those teachers, who were untrained would receive a salary admissible to a matric untrained teacher unless they obtain requisite training therefore. The said letter has been 18 issued in view of the Government order bearing no. 104 dated 23.1.1980 purported to have been issued under section 3(4) (a) read with section 8 of the 1976 Act. Evidently, therefore, the Government itself recognised the services of the untrained teachers."
(XIV) One more reason has been given in the impugned order dated 20th January, 2011 at annexure2 to the memo of the petition that as the petitioners were appointed on unsanctioned post, their appointment was illegal. This contention is also not accepted by this Court mainly for the reason that in the very same impugned order, it has been stated that subsequently there was re appointment of the petitioners on the sanctioned post and thereafter they have been confirmed in the services by the respondentsGovernment itself. Petitioner No.1 was confirmed in the services or was approved in the services in 1989. Similarly the services of the petitioner no.2 was approved w.e.f. 1st April, 1989 and the same is the case with petitioner no.3. So far as petitioner no.4 is concerned, she was appointed on 1st August, 1990 and from the very beginning, she was a Graduate and has cleared teachers training examination (B.Ed) and her services were also approved by the respondentsState authorities from the date of her appointment i.e. w.e.f 1st August, 1990. All these teachers are legally competent and eligible to be appointed as teachers at the Primary Schools.
(XV) Moreover, right to get salary comes within the ambit of Article 300A of the Constitution of India. Once such right is accrued, it cannot be taken away even by rule framed under Article 309 of the Constitution of India by giving retrospective effect. It has been held by this Hon'ble Patna High Court in Smt. Pratibha Singh & anr Vs. State of Bihar & Others reported in 1988 PLJR, 646 in paragraphs 58, 62, 63 as under:
"58. It is further well settled that a vested right cannot be taken away even by a rule 19 framed under Article 309 of the Constitution of India by giving a retrospective effect thereto inasmuch as by such retrospective amendments the vested rights of an employee cannot be taken away. Such rule must also be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution of India.
62. Further, when a person is validly appointed he is entitled to receive salary. Such right to receive salary amounts to right to hold property. Such a right of property fall within Article 300A of the Constitution and as such the State Government while issuing an executive flat cannot deprive a person of his right to hold property.
63. Article 162 of the Constitution is subject to other provisions of the Constitution. It is, therefore, necessary also subject to Article 300A of the Constitution. Reference in this connection may be made to M/s. Bishambhar Dayal Chandra Mohan Vs. State of H.P. And others (A.I.R. 1982 S.C.33).
In R.N. Najundappa Vs. T. Thimmiah and another (A.I.R. 1972 S.C. 1767 = 1972 (2) S.C.R. 799) it has been held that if an appointment is illegal and unconstitutional the same cannot be regularised by issuing an instrument under Article 162 of the Constitution of India. If an illegal appointment cannot be validated by an executive instruction, there cannot be any doubt that a legal appointment cannot be invalidated thereby."
(Emphasis supplied) (XVI) It has further been held in the aforesaid decision in paragraph 20 3 as under:
"3. The various authorities including the Headmaster of the said school and the District Superintendent of Education recommended that the services of the petitioners be regularised but allegedly the respondents refused to do so."
(emphasis supplied) (XVII) It has been held by Hon'ble Patna High Court in 1982 (2) PLJR
512. It has been held in this decision that circular/letter being merely an administrative order could not be given retrospective effect.
(XVIII) One more peculiar facts has been pointed out by the petitioners that petitioners' school was established and administered by minority and therefore, as per Article 30 of the Constitution of India, they have right to establish and administer educational institutions which includes right to appoint the teaching staffs as well as nonteaching staffs. It has been held by the Hon'ble Supreme Court in SECY., MALANKARA SYRIAN CATHOLOC COLLEGE Vs. T. JOSE AND OTHERS reported in (2007) 1 SCC 386 in paragraph 19 as under: (quote) (emphasis supplied) "19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff, 21 and to take action if there is dereliction of duty on the part of any of its employees;
(c) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-à-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister.
There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-
teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do 22 not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."
(XIX) Thus, right of minority to establish and administer educational institutions of their choice includes the right to appoint teaching as well as nonteaching staffs and therefore also, the circular bearing no.2501 dated 31st December, 1982 is not applicable to Kabiria Urdu Middle School, Mango, Jamshedpur. Therefore, th reason given in the impugned order dt. 20 August, 2001 (at annexure 2), that the school has not selected teachers from the "panel of teachers prepared by the State Authority is violative of Article 30 of the Constitution of India.
(XX) Contention raised by the State that the school in question was never declared as a minority school, is also not accepted by the Court mainly for the reason that once a school is established and administered by minorities for educational purposes, it would continue to be so, irrespective of the fact whether the Government declares it as such or not. When the Government declares that the schools is a minority school, it has recognized a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existence antecedent to such declaration. Thus, there is no need of 23 declaration by the State once an educational institution is established and administered by the minority. It has been held by the Hon'ble Supreme Court in N. Ammad Vs. Manager, Emjay High School and others reported in (1998) 6 S.C.C. 674 in paragraphs 12, 13 as under:
"12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus:
"30. (1) All minorities, whether based on a religion or language, shall have the right to establish and administer educational institutions of their choice."
13. When the Government declared the School as a minority school it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have exited antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 281994."
(Emphasis supplied) (XXi) There is already an application preferred by Kabiria Urdu Middle School, Mango, Jamshedpur in the year 1978. In view of these facts also, the circular bearing no.2501 dated 31st December, 1982 is not applicable to the petitioners.
24(XXii) As a cumulative effect of the aforesaid reasons and the judicial pronouncements, decision earlier held by the Patna High Court as referred to herein above are binding to this Court. Section 84 of the Bihar Reorganisation Act, 2000 is pari materia with Section 87 of the Bombay Reorganisation Act, 1960. Section 87 of the Bombay Reorganisation Act, 1960 reads as under: "87. Territorial extent of law. The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent legislature or other competent authority be construed as meaning the territories within that State immediately before the appointed day".
(XXiii) It has been held by the Hon'ble Gujarat High Court in the case of State of Gujarat vs. Gordhandas Keshvaji Gandhi and others reported in AIR 1960 Guj. 49 that the decisions of the Bombay High Court given prior to 1st of May, 1960 are binding on Gujarat High Court as successor Court on principle of judicial comity. State of Gujarat was bifurcated under the Bombay Reorganisation Act, 1960 w.e.f 1st May, 1960. As per Section 87 of the 1960 Act, the provisions of Part II shall not be deemed to have affect any change in the territories to which any law in force immediately before the appointed day extends or applies. Para 28 of this decision reads as under :
"(28) Our answer to the question referred to this Special Full Bench is that the decision of the Bombay High Court given prior to the appointed day, i.e., to 1st May, 1960, do not constitute 'any law in force immediately before the appointed day' within the meaning of S.87 of the Bombay Reorganisation Act, 1960. We hold that the decisions of the High Court of 25 Bombay given prior to 1st May 1960 have as much binding force and effect as if they were the decisions given by the Gujarat High Court itself. A decision of a single Judge of the Bombay High Court given prior to st 1 May, 1960 would have the same binding force and effect as a decision of a single Judge of the Gujarat High Court; a decision of a Division Bench of the st Bombay High Court given prior to 1 May 1960 would have the same binding force and effect as a decision of a Division Bench of the Gujarat High Court and a decision of a Full Bench of the Bombay High Court st given prior to 1 May, 1960 would have the same binding force and effect as a decision of a Full Bench of the Gujarat High Court " (Emphasis supplied) (XXIV) Now section 84 of the Bihar Reorganisation Act, 2000 as stated herein above, is para materia with Section 87 of the Bombay Reorganisation Act, 1960. Section 84 of the Bihar Reorganisation Act, 2000 reads as under: " 84. Territorial extent of laws. The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day."
(XXV) In view of the aforesaid decision, bot the decisions as stated herein above, i.e. reported in 1988 PLJR 646 and decision rendered by the Hon'ble Patna High Court reported in 1992 (2) PLJR 512 are binding in the light of Section 84 of the Bihar 26 Reorganisation Act, 2000.
7. As a cumulative effect of the aforesaid facts and reasons, the circular bearing no.2501 dated 31st December, 1982 is not binding to the petitioners as it cannot be given retrospective effect from 01.1.971 as well as for the aforesaid reasons also, the same is not binding upon the present petitioners. Hence, I hereby set aside the order passed by the Secretary, Human Resources Development Department, State of Jharkhand,Ranchi dated 20th August, 2001 (annexure2 to the memo of the petition) and I hereby direct the respondents to make the payment of salary to the petitioners in accordance with law for the period running from October, 2001 onwards within a period of four weeks from the date of receipt/production of a copy of this order.
8. Writ petition is allowed and disposed of with the aforesaid directions and observations.
(D.N. Patel, J) Manoj/s.m.