The State Of Jharkhand vs Sanjay Kumar
2021 Latest Caselaw 1112 Jhar

                                    1



IN THE HIGH COURT OF JHARKHAND AT RANCHI

                     L.P.A No. 204 of 2019


1.The State of Jharkhand.
2.Secretary, Human Resources Development Department, Government of
Jharkhand, Project Bhawan, P.O-Dhurwa, P.S-Jagarnathpur, District-Ranchi
(Jharkhand).
3.Director, Primary School Education and Literacy Department, Human
Resources Development Department, Government of Jharkhand, Project
Bhawan, P.O-Dhurwa, P.S-Jagarnathpur, District-Ranchi (Jharkhand).
4.District Superintendent of Education, Ranchi, At Ranchi, P.O. Ranchi &
P.S-Kotwali, District Ranchi (Jharkhand)               ...... Appellants
                          Versus

1.Sanjay Kumar, son of Late Faudar Sao, Resident of Village-Lapung, P.O
& P.S-Lapung, District-Ranchi (Jharkhand) .....     Petitioner/Respondent

                                  with

                          L.P.A No. 196 of 2018

1.The State of Jharkhand.
2.The State of Jharkhand through Director, Primary Education, School
Education and Literacy Department, Govt. of Jharkhand, P.O & P.S-
Jaganathpur, Ranchi.
3.District Superintendent of Education, P.O & P.S-Jaganathpur, Ranchi.
4.District School Inspector, P.O & P.S + District-Ranchi
                                                         ...... Appellants

                          Versus

1.Sanjesh Mohan Thakur, son of Keshav Mohan Thakur, resident of Village-
Dumaria, P.O-Motia-Dumaria, P.S and Dist-Godda.
                                   .....      Respondent/writ petitioner
2.The School Managing Committee, through its Secretary, Doranda girls
Middle School, P.O. & P.S + District-Doranda, Ranchi. ..... Respondents

               ---------

CORAM:     HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
               ----------
For the Appellants        : Mr. Sachin Kumar, A.A.G-II (L.P.A No. 204 of 2019)
                          : Mr. Suresh Kumar, S.C (L & C)II (L.P.A No. 196 of
                          2018)





For the Respondents    : Mr. Anil Kumar Jha, Advocate

For School Management : M/s Saibal Mitra & Nivedita Kundu, Advocate

-----------

Oral Judgment:

Order No.9/Dated: 5th March, 2021

1. With consent of the parties, hearing of the matter has been done

through video conferencing and there is no complaint whatsoever regarding

audio and visual quality.

2. In both the appeals more or less the issues are common and as such,

both the appeals have been heard together and are being disposed of by this

common order.

I.A. No.9722 of 2019 in L.P.A No.204 of 2019

3. This interlocutory application has been filed for condoning the delay

of 189 days, which has occurred in preferring this appeal.

4. Heard the parties.

5. Having regard to the averments made in this application, we are of the

view that the appellants-State was prevented by sufficient cause from

preferring the appeal within the period of limitation.

6. Accordingly, I.A. No.9722 of 2019 is allowed and delay of 189 days

in preferring the appeal is condoned.

L.P.A. No.204 of 2019

7. This instant intra-court appeal under Clause 10 of the letters patent, is

directed against the order/judgment dated 25.07.2018 passed by learned

Single Judge of this Court in W.P.(S) No.2037 of 2016 whereby and

whereunder the decision as contained in letter No.103 dated 17.02.2016

issued by the Director, Primary School Education and Literacy Department

has been quashed and set aside, by which the claim agitated by the writ

petitioner for final fixation of pay scale has been denied on the ground that

the post was not sanctioned.

8. The brief fact of the case, which requires to be enumerated, reads as

hereunder:

The Lutheran Middle School, Gopalpur, Lapung, Ranchi is a

Government Aided Minority School, was granted minority status vide Memo

No.2361 dated 26.05.1978 and after grant of minority status, the respondents

have sanctioned seven posts of teachers in the said school. As such, the

teachers have been appointed in the Government Aided Minority School

against the vacant sanctioned posts and whose services have been approved

by the District Superintendent of Education, are to be paid their salary by the

State Government at the scale at par with the teachers of the Government

School.

The writ petitioner was appointed in the said school as teacher on

20.09.1988 which was duly been approved by the District Superintendent of

Education, Ranchi vide Memo No.2884 dated 27.07.1989. After approval of

the appointment, the service book of the writ petitioner was opened and

salary of the writ petitioner was provisionally fixed by the District

Superintendent of Education and payment of the same commenced with

effect from the date of his joining which the writ petitioner continued to

draw till February, 2010.

The grievance of the writ petitioner is that as there was huge pendency

of files with respect to the final fixation of the pay scale, the State

Government, from time to time, had been issuing circulars and guidelines

regarding payment of salary to the newly appointed teachers on the basis of

the provisional fixation of pay scale, pending the final fixation of pay scale.

The first notification to that effect was issued by the State Government on

22.12.1995, wherein all District Superintendents of Education were informed

that all teachers who have been appointed in the Government Aided

Minority Schools should be paid their salary on the basis of the provisional

fixation of the pay scale and only after obtaining an undertaking from the

said teachers on affidavit. It is further case of the writ petitioner that after

implementation of the 6th Pay Revision, Human Resources Development

Department, Government of Jharkhand had issued a letter no.2510 dated

06.12.2007 wherein it was reiterated that final fixation of pay scale is still

pending as such the payment should be made to the teaching and non-

teaching employees of the concerned aided schools including minority

schools on the basis of the provisional fixation of pay scale after obtaining

an affidavit to the effect that if any discrepancy is found, the excess

payment, if received in lieu of some discrepancy, should be refunded.

The specific case of the writ petitioner is that the District

Superintendent of Education after provisionally fixing the pay scale of the

teachers of several minority schools, including the school of the present writ

petitioner-respondent, sent the same for approval and final fixation to the

office of the Director, Primary School Education and Literacy Department,

Human Resource Development Department, Government of Jharkhand vide

letter dated 17.07.2008. The respondents-appellants withheld the salary of

the writ petitioner with effect from February 2010 without any cogent

reasons, even though the writ petitioner has continuously discharged his duty

in the intervening period and further also that the appointment of the writ

petitioner have been duly approved by the competent authority and therefore,

he approached to this Court for disbursement of his salary from the month of

February, 2010.

Counter affidavit has been filed before the writ Court, inter alia

stating therein that the Managing Committee of the school has appointed the

petitioner against non-sanctioned post as there was no sanctioned post of

Physical Education Teacher. The post of Physical Education Teacher was

not admissible in the Non-Government Aided Minority School though it

appeared that one post of Physical Education Teacher was allotted to the said

school vide Memo No.414 dated 13.07.1990 issued under the signature of

Additional Director, Branch Ranchi. While according to the State the power

to sanction post is with the State Government and therefore, the sanction of

the post as has been ordered by the Additional Director, Branch, Ranchi

cannot be construed to be sanctioned by the State Government and therefore,

the Government has taken decision to withheld the salary taking into

consideration that the writ petitioner was appointed against the non-

sanctioned post and he cannot claim benefits relating to fixation of salary.

The writ Court, after taking into consideration the rival submissions

and also considering the fact that the post against which the petitioner was

appointed, had subsequently been sanctioned by the State Government vide

Memo no.414 dated 13.07.1990 and he continued to get the salary till

February, 2010 and since the writ petitioner has received the salary for the

last 22 years, it is not available to the respondent authority to look into the

legality and propriety of appointment of the writ petitioner after lapse of 22

years, the said order is the subject matter of present intra-court appeal.

9. Mr. Sachin Kumar, learned A.A.G-II appearing for the appellants-

State, has assailed the order passed by the learned Single Judge on the

ground that the learned Single Judge has not appreciated the fact that the

appointment of the writ petitioner has been made against non-sanctioned

post hence he has no right to claim salary and even no right to claim the said

post on the basis of principle that the said post having not been sanctioned

and if any appointment has been made, such appointment should be treated

to be illegal appointment and therefore, the Government has taken decision

to withheld salary in the backdrop of illegal appointment which cannot be

said to suffer from any infirmity, which fact has not properly been

appreciated by the learned Single Judge.

10. Per contra, Mr. Anil Kumar Jha, learned counsel for the writ

petitioner-respondent has submitted that it is not that the writ petitioner has

been appointed against non-sanctioned post rather he has been appointed

against the sanctioned post and has continuously got the salary till the month

of February, 2010 right from the date of his initial appointment. As such,

after lapse of about 22 years, the question about the legality and propriety of

the appointment is not fit to be agitated and the learned Single Judge after

taking into consideration this aspect of the matter, is correct in passing the

order by quashing and setting aside the impugned decisions of the authority.

It has further been submitted that even accepting the post on which the

writ petitioner had been appointed was not sanctioned, but it transpires from

the fact that the post upon which the writ petitioner was appointed has been

sanctioned on 13.07.1990, however, the said decision of sanction of the post

is not being accepted by the appellants since the said decision is by the

Additional Director of the Primary School Education and Literacy

Department. But the fact remains that the writ petitioner was appointed after

considering his eligibility in view of the advertisement as Physical Education

Teacher and as per the circular issued by the State Government dated

17.02.1981 based upon the State Government's conscious decision by virtue

of issuance of State Order no.690 dated 17.02.1966 to keep 5% of the post in

the Primary School for the physical teacher and reiterating the said order due

communication was issued to the District Superintendent of Education vide

letter dated 17.02.1981 and therefore, it cannot be said that the post of

physical Education Teacher is having not been sanctioned in the present fact

of the case.

It has further been submitted that this Court while passing order in

W.P.(S) No.3637 of 2011 (Annexure-6 to the writ petition) has already

decided the entitlement of the writ petitioner of the salary which order

having not been assailed before the higher forum, therefore, it is not

available to the appellants-State to again raise the issue by negating the

claim of the writ petitioner about the salary.

11. In response to such argument, it has been submitted by the learned

counsel for the appellants by referring to the provision of Bihar Primary

School Recruitment Rule, 1991 whereby and whereunder all the previous

circulars/rules/regulations have been repealed and therefore, once all the

circulars/rules/regulations and executive instructions/orders have been

repealed as such the Government Order No.690 dated 17.02.1966 will also

stand repealed and hence the contention of the writ petitioner that 5% post of

the teacher is to be kept reserved for physical teacher in the primary school,

cannot be said to be proper.

I.A. No.10629 of 2018 in L.P.A No.196 of 2018

12. Learned counsel for the appellants-State is directed to make necessary

correction in the prayer portion as the office has reported that the delay is

only 58 days and not 125 days. We have taken notice that in paragraph-2 the

appellants-State has stated that the delay is 58 days.

13. Learned counsel for the appellants-State submits that due to

inadvertence in the prayer portion, it has been written that the delay is 125

days.

14. This order is being passed in the Interlocutory Application subject to

aforesaid correction to be made by the appellants-State within a period of

one week.

Since no counter affidavit has been filed, we proceed to dispose of the

Interlocutory Application today itself.

15. Heard the parties.

16. Having regard to the averments made in this application, we are of the

view that the appellants-State was prevented by sufficient cause from

preferring the appeal within the period of limitation.

17. Accordingly, the delay of 58 days in preferring the appeal is hereby

condoned and this application stands allowed.

L.P.A No.196 of 2018

18. The instant appeal under Clause 10 of the letters patent, is directed

against the order/judgment dated 19.01.2018 passed by learned Single Judge

of this Court in W.P.(S) No.3505 of 2009 whereby and whereunder the order

dated 12.03.2005 passed by the Director, Primary Education has been

quashed and set aside, by which the claim of the writ petitioner for fixation

and determination of pay scale and to make payment of arrears of salary as

well as current salary in fixation of pay scale has been denied.

19. The brief fact of the case which requires to be enumerated is that in

pursuance to advertisement published in daily newspaper "Prabhat Khabar"

on 28.01.2001, the writ petitioner had applied and was selected in Doranda

Girls Middle School, Ranchi and accordingly, he submitted his joining on

01.03.2001 which was duly been approved by the District Superintendent of

Education, Ranchi vide office order dated 27.07.2001. The Headmistress,

who was one of the members of the School Managing Committee sent a

letter to District Superintendent of Education, Ranchi to seek approval with

regard to fixation and determination of salary. In turn, the respondent no.3-

District Superintendent of Education, Ranchi sent a letter dated 20.03.2002

addressed to the Director, Primary Education for fixation of pay of the writ

petitioner. Further, Managing Committee of the school has also sent several

letters to the Director, Primary Education to determine and fix the pay

scale/salary of the writ petitioner.

But, having no decision taken in this regard, the writ petitioner

approached to this Court by filing W.P.(S) No.6313 of 2004 which was

disposed of vide order dated 09.12.2004 and later on the said order was

modified vide order dated 03.01.2005 whereby the writ petitioner was

directed to represent before the Director, Primary Education, Ranchi to pass

appropriate order. Pursuant thereto, the writ petitioner had filed

representation on 17.01.2005 before the respondent no.2-Director, Primary

Education but was rejected vide order dated 12.03.2005 negating the claim

of the writ petitioner.

Being aggrieved the writ petitioner filed a writ petition being W.P.(S)

No.3505 of 2009 invoking the jurisdiction of this Court conferred under

Article 226 of the Constitution of India for redressal of his grievance taking

the ground that the petitioner is possessing the degree of C. P.Ed and D.

P.Ed and it is the settled position of law that a candidate who possess the

degree or diploma in D. P.Ed shall be treated to be equivalent to matric

trained teacher. Apart from that, letter dated 17.02.1981 issued by Special

Secretary cum Director (Primary) Bihar specifically mentions that 5% seats

has been reserved for appointment of physical trained teacher and as such on

the ground of qualification his appointment cannot be said to be bad in law.

So far as other ground for rejection of fixation of pay scale is

concerned, it is relevant to refer herein that one Seema Paul, who was

appointed in the same school but her appointment was questioned also on the

ground that departmental representative had not attended the selection

process, this Court vide order dated 23.04.2014 passed in W.P. (S) No.2547

of 2009 has not found any substance on the plea of the respondent-State that

in absence of departmental representative in the selection committee the

appointment made by such selection committee will be construed to be

illegal appointment. As such this ground is not tenable to hold the

appointment of the writ petitioner illegal one.

The School Managing Committee-Respondent No.5 has put its

appearance and supported the claim of the writ petitioner by taking the plea

that as per the relevant rule meant for appointment of teachers in Aided Non-

Government Minority School, the selection process was initiated and the

name of the writ petitioner was sent for approval before the District

Superintendent of Education, Ranchi and the District Superintendent of

Education, Ranchi approved the joining of the petitioner. It is further

submitted by making reference to circular dated 17.02.1981 that the

Managing Committee of the School was bound to fill up one sanctioned post

of the Physical Education Teacher and accordingly, they advertised for the

same and appointed the writ petitioner. It is the further case of the

respondent no.5 that the Director, Primary Education rejected the claim of

the writ petitioner on the basis of notification dated 30.09.1991 which is in

no way applicable for the appointment of teachers of the Non-Government

Aided School rather it is applicable in the matter of employment in the

Government school.

Against the aforesaid ground of the writ petitioner, the respondent-

State has vehemently opposed the same by taking the plea that the writ

petitioner has been illegally appointed since no post of Physical Trained

Teacher is sanctioned. Furthermore, the Human Resources Development

Department of the erstwhile State of Bihar vide letter dated 04.03.1993 has

clarified that only trained teachers are to be appointed to the post in Non-

Government Aided Minority School. Further due to absence of the

departmental representative in the selection committee, the selection process

is null and void in the eye of law and therefore, the claim of the writ

petitioner with regard to pay fixation cannot be said to be justified.

Learned Single Judge, after taking into consideration the rival

contention raised on behalf of the parties, has quashed the order dated

12.03.2005 with a direction to take fresh decision with regard to fixation of

pay and salary of the writ petitioner within a period of eight weeks from the

date of receipt/production of copy of this order as also the direction to pay

arrears of salary as well as current salary within a period of twelve weeks

thereafter.

20. The State has preferred appeal against the said order inter alia on the

ground that when there is no post of Physical Education Teacher and since

the appointment has been made to such post, the same will be said to be

illegal since its inception. It has been contended that, reliance upon a circular

issued on 17.02.1981 which provides for keeping 5% seats for Physical

Education Teacher in primary school has been repealed by virtue of the

Bihar Primary School Recruitment Rule, 1991. As such, the claim of the writ

petitioner since is based on the notification dated 17.02.1981 which having

been repealed by Bihar Primary School Recruitment Rule, 1991 and since

the appointment has been made as Physical Education Teacher in absence of

any sanctioned post, the very appointment of the writ petitioners-respondents

is illegal and therefore, the decision has been taken by the authority negating

the claim for fixation of pay scale.

It has further been contended that the writ petitioner has been

appointed in place of one Sulekha Sen who was in service as Matric Trained

Scale and against the vacancy arises after quitting the service by said

Sulekha Sen, the writ petitioner ought not to have been appointed as physical

teacher since Sulekha Sen was not working as a physical teacher and

therefore, the very appointment of the petitioner as Physical Education

Teacher is against the vacancy created due to retirement of one Sulekha Sen,

as such illegal.

But, the learned Single Judge, without appreciating this aspect of the

matter, has quashed and set aside the decision taken by the authority which

is not sustainable in law and accordingly the same is fit to be quashed and set

aside.

21. Per contra, Mr. Saibal Mitra and Ms. Nivedita Kundu, learned counsel

for the respondent-School Management have submitted that there is no

question of appointment of the writ petitioner against non-sanctioned post of

the Physical Teacher. The contention raised by the learned counsel for the

appellants about nonest of the circular issued on 17.02.1981 by virtue of

coming into effect of Bihar Primary School Recruitment Rule, 1991 which is

absolutely incorrect and cannot be said to be a sustainable argument as

because the Government Order no.690 dated 17.02.1966 providing to keep

5% vacancy reserved for the Physical Education Teacher is not at all covered

with the Bihar Primary School Recruitment Rule 1991 since the Bihar

Primary School Recruitment Rule 1991 pertains to the statutory provision

for filling up of the post in the Primary Schools while the Order no.690 dated

17.02.1966 speaks about reserving 5% vacancies for the Physical Education

Teacher. Further it is not evident from the provision of the Bihar Primary

School Recruitment Rule 1991 which contains a repealment clause making

reference of the repealment of the provision pertaining to keeping 5%

vacancies reserved for the Physical Education Teacher and hence the

contention raised by the learned counsel for the appellants that after coming

into effect of the Bihar Primary School Recruitment Rule 1991, the

Government Order no.690 dated 17.02.1966 as also the circular dated

17.02.1981 will stand automatically repealed, is having no substance.

22. According to the learned counsel for the writ petitioners-respondents

since they have been appointed by virtue of the selection process and as such

they are entitled to get the salary.

The contention with respect to non-availability of the State

representative in the selection committee, according to the learned counsel,

the same has already been decided by this Court vide order passed in W.P.

(S) No.2547 of 2009 dated 23.04.2014 and therefore, the ground for

declaring the appointment of the writ petitioners illegal due to non-

participation of the State representative in the selection committee, cannot be

said to be a good ground.

Learned counsel for the writ petitioners-respondents has further

submitted that the learned Single Judge, after taking into consideration all

these aspect of the matter, has passed the order by quashing the Government

decision, which cannot be said to suffer from an error and therefore, present

intra-court appeal may be dismissed.

23. We have heard learned counsel for the parties in both the appeals,

perused the documents on record as also the finding recorded by the learned

Single Judge in both orders, which have been impugned in these memo of

appeals.

This Court before proceeding further to the legality and propriety of

the order/judgment passed by the learned Single Judge as also the decision

of the authority, deem it fit and proper to refer some admitted factual

aspects.

Consideration of Case Arising out of L.P.A No.204 of 2019

So far as the case of the writ petitioner in L.P.A No.204 of 2019 is that

he was appointed on 20.09.1988 as Physical Trained Teacher. It is evident

from Annexure-2 to the writ petition dated 27.07.1989 as contained in Memo

No.2884 issued by the District Superintendent of Education, Ranchi that

services of the respondent-writ petitioner has been approved. The writ

petitioner has continued to discharge his duty and has been paid salary up to

the month of February, 2010 and thereafter the salary has been stopped, for

which he has rushed to this Court by way of writ petition being W.P.(S)

No.3637 of 2011 praying therein for quashing of part of letter dated

12.03.2011 and further direction upon the respondent to make payment of

arrears of salary due to him since February, 2010.

It is evident from the order passed in W.P.(S) No.3637 of 2011 dated

02.05.2013 appended as Annexure-6 to the writ petition therein, this Court

considered the fact that the writ petitioner was working as teacher as also the

fact has not found to be disputed that before February, 2010 the writ

petitioner was getting salary and further there is no order of any competent

authority of withholding the petitioner's salary as also no reason was

informed to the petitioner for the same for such a long time.

So far as ground for non-payment of salary due to want of approval

for fixation of pay, this Court has opined that the same should have been

obtained well within time. Withholding of the petitioner's salary for years

without any legal order is wholly unjustified and violative of Article 21 of

the constitution of India. The relevant paragraphs of the said order is being

referred:

"10. I have heard learned counsel for the parties. It is an admitted position that the petitioners have been working as teachers. It is also not in dispute that before February, 2010, the petitioners were getting salary. There is no order of any competent authority for withholding the petitioners' salary. No reason was informed to the petitioners for withholding their salary for such a long time.

11. I find no legal justification for withholding the petitioners' salary.

12. Even if any approval of fixation of pay was required, the same should have been obtained well within time. Withholding of the petitioners' salary for years, without any legal order, is wholly unjustified, unfair and violative of Article 21 of the Constitution of India.

13. In view of the above, this writ petition is allowed. The respondents are directed to pass appropriate order, regarding payment of arrears of salary as well as current salary to the petitioners, within four weeks, from the date of receipt/production of a copy of this order."

The respondent having not complied with the said order, the writ

petitioner filed a contempt case being Cont. Case (c) No.954 of 2013.

24. It requires to refer about the order dated 04.02.2016 passed in the

aforesaid contempt case, whereby and whereunder the Contempt Court had

restrained the disbursement of salary in favour of the Director, Primary

Education, Human Resources Development Department, Jharkhand, Ranchi

due to non-compliance of the order and posted the matter on 07.04.2016.

The extract of the said order is being referred herein:

"3. In view of the aforesaid submissions, I hereby direct the respondent-State to decide the claim of this applicant whosoever is legally competent to decide, otherwise, the Director, Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi shall remain personally present before this Court on the next date of hearing at 10:30 a.m. The Director, Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi shall not draw his/her salary till further order of this Court. If he/she is a self drawing officer, he/she will not prepare bill of his/her salary nor he/she will be paid salary by the State of Jharkhand.

4. The matter is adjourned on 7th April, 2016."

Finally the decision have been taken by the authority by passing an

order dated 17.02.2016 vide Annexure-8 to the writ petition, whereby and

whereunder the claim of the writ petitioner has been rejected on the ground

that the post on which the writ petitioner was working was not sanctioned.

25. This Court, after going across the admitted factual aspects as stated

hereinabove, has gathered therefrom that both the writ petitioners herein

have joined their services as Physical Education Teacher. The plea have

been taken by the respondent-writ petitioners by refuting the ground of the

State appellants that there was no sanctioned post of Physical Education

Teacher. The respondent-writ petitioners have relied upon the circular dated

17.02.1981 issued by the Special Secretary cum Director (Primary), Bihar

which mentions about 5% seats kept to be reserved for physical trained

teacher. The State appellant has taken the plea that the aforesaid circular

dated 17.02.1981 stood repealed by virtue of notification dated 30.09.1991.

Learned counsel for the appellants in both the appeals have raised

similar issues and as such, it requires by this Court to answer the issue about

the applicability of the notification dated 30.09.1991 with respect to the case

of the respondent-writ petitioner in L.P.A No.204 of 2019 in order to verify,

as to whether the said circular dated 17.02.1981 will be applicable or will be

said to be repealed by virtue of order dated 30.09.1991. The said issue is

required to be considered on the fact of this case since herein the respondent-

writ petitioner was appointed on 20.09.1988. There is no dispute about the

settled position of law that any enactment or rule cannot have retrospective

effect unless provided.

26. We have verified the rule which was notified on 30.09.1991 which is

in the name of Bihar Primary School Recruitment Rule 1991. It is evident

therefrom that there is no such stipulation about its applicability with

retrospective date rather the provision of Bihar Primary School Recruitment

Rule, 1991 has been made effective from the date of issuance of the

notification as would be evident from Rule 3 thereof, therefore, the

appointment of the writ petitioner since is on 20.09.1988, therefore, will not

be governed by the provision of Bihar Primary School Recruitment Rule,

1991 giving its retrospective application.

27. In view thereof, in order to consider the contention raised by the State-

appellants that the very post of the Physical Education Teacher is not

available in the school in question in the case of L.P.A No.204 of 2019,

cannot be said to be justified argument. Further it would be evident from the

pleading of the State appellants as would appear from the impugned order

that the post of Physical Education Teacher have been said to be sanctioned

with effect from 13.07.1990 but that has been issued under the signature of

Additional Director of the Primary Education and therefore, the plea of the

State appellants that the question of sanction of post is only domain of the

State Government and hence, any decision taken by the Additional Director

level officer with respect to sanctioning the post with effect from 13.07.1990

will be said to be illegal.

However, we are not impressed with such argument for the reason that

the writ petitioner has already been appointed on 20.09.1988 i.e. during the

subsistence period of the Government Order No.690 dated 17.02.1966

followed by the executive instruction as contained in letter no.17.02.1981

keeping the 5% post reserved for the Physical Education Teacher and

therefore, it cannot be said that the appointment of the writ petitioner made

as Physical Education Teacher is against the non-sanctioned post. Further it

is evident from the material available on record that the appointment of the

writ petitioner in the instant appeal has been approved by the District

Superintendent of Education by virtue of office order dated 27.07.1989 as

contained in Memo No.2884, who is the competent authority to approve

such appointment. It is also admitted fact that the writ petitioner has been

disbursed with the salary till the month of February, 2010 and thereafter the

salary has been withheld, for which he has approached to this Court by filing

writ petition being W.P.(S) No.3637 of 2011 which has been allowed vide

order dated 02.05.2013 against which no appeal has been preferred and

therefore, the direction passed therein had attained its finality, which

contains a direction for disbursement of salary and as such, by passing an

order by the authority negating the claim of the writ petitioner for

disbursement of salary from the month of February, 2010 by the impugned

decision dated 17.02.2016 is nothing but sitting over upon the order passed

by this Court in W.P.(S) No. 3637 of 2011.

It is settled position of law that State respondent or any functionary, if

aggrieved with the order passed by the Court of law, is at liberty to prefer an

appeal but without assailing the same before the higher forum taking

contrary decision thereof will be said to be sitting as an appellate court upon

the order passed by the Court of law, as has been done in the instant case. In

the case in hand, the writ Court, in exercise of power conferred under Article

226 of the Constitution of India in W.P.(S) No.3637 of 2011 as quoted and

referred hereinabove, has specifically directed for disbursement of the salary

as also the fixation of pay scale by allowing the writ petition against which

no appeal have been filed rather a contrary decision has been taken negating

the said claim on the ground that the post on which the writ petitioner is

working is not sanctioned one. The aforesaid reason is well discussed in

W.P.(S) No.2037 of 2016 and therefore, the authority who has passed an

order negating the claim of the writ petitioner as has been prayed in the writ

petition, has exceeded its jurisdiction and sat upon the order passed by this

Court under Article 226 of the Constitution of India without challenging it

before the appellate court. Reference in this regard may be made to the

judgment of the Hon'ble Apex Court rendered in the case of Union of India

vs. K.M. Shankarappa reported in (2001) 1 SCC 582 wherein at paragraph 7

it has been held as under:

"7. We are unable to accept the submission of the learned counsel. The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of

the film on the public. Once a quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the executive and the Government is concerned. To permit the executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi- judicial Board. It would amount to subjecting the decision of a quasi-judicial body to the scrutiny of the executive. Under our Constitution the position is reverse. The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The legislature may, in certain cases, overrule or nullify a judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the executive or the legislature cannot set at naught a judicial order. The executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi-judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal."

28. This Court, has gone across the order passed by the learned Single

Judge wherein though consideration has been made with respect to claim of

the writ petitioner and taking into consideration the fact in entirety, the

impugned order has been passed.

Therefore, we do not find any reason to interfere with order impugned

coupled with the fact that the writ Court in W.P.(S) No.3637 of 2011 has

decided the very said claim and as has been held by the Hon'ble Apex Court

in Union of India vs. K.M. Shankarappa (supra), we are of the view that the

decision of the authority, negating the claim of the writ petitioner is

absolutely improper and the learned Single Judge after taking into

consideration these aspect of the matter is correct in interfering with the

decision taken by the Administrative authority.

29. In view thereof, the impugned order suffers from no infirmity.

Accordingly, the instant appeal being L.P.A No. 204 of 2019 fails and is

dismissed.

Consideration of Case Arising out of L.P.A No.196 of 2018

30. So far as the case of the respondent-writ petitioner which is the subject

matter of L.P.A. No.196 of 2018 is concerned, the writ petitioner therein has

been appointed by virtue of an advertisement published on 28.01.2001 as has

been appended as Annexure-1 to the writ petition, whereby and whereunder

it is evident that the application had been invited for appointment of a

teacher in the school namely, Doranda Girls Middle School, Ranchi wanting

therein a Trained Graduate or C.P.Ed passed teacher, proficient in

Mathematics and English with 5 years' experience and age below 35 years

on 28.02.2001. Such advertisement has been published due to availability of

vacancy since one Sulekha Sen has superannuated from service. Duly

constituted selection committee has considered the case of the writ petitioner

and therefore, he has been found to be suitable and as such selected for

appointment, in pursuant thereto, the petitioner has joined as Matric Trained

Teacher in the pay scale of Rs.1200-30-1380 with effect from 01.03.2001.

His services has been approved with certain conditions vide order dated

27.07.2001 as contained in Memo no.4644 issued by the District

Superintendent of Education, Ranchi particularly with a condition that

before fixation of pay scale his educational and training certificate is

required to be authenticated.

The petitioner started rendering his services but he has not been paid

salary and therefore, he approached to this Court by filing writ petition being

W.P.(S) No.6313 of 2004 which was disposed of by another learned Single

Judge of this Court vide order dated 09.12.2004 without entering into the

merit and directed the writ petitioner to file representation before the District

Superintendent of Education, who in turn was directed to consider and

dispose of the representation by passing reasoned order within a specific

period. The petitioner had made due representation before the authority

giving therein details but the claim of the writ petitioner has been rejected

vide order dated 17.03.2005 on the ground that the appointment of the writ

petitioner is not in accordance with law as also against the non-sanctioned

post of physical teacher and the required procedure has not been followed.

The issue of keeping 5% post reserved for Physical Education Teacher

has already been discussed as under Paragraph nos.25, 26, 27, 28, 29 and 30

as above, as such the same is not being repeated for the sake of brevity.

31. So far as the fact involved herein is that the writ petitioner was

appointed by virtue of appointment notified on 01.03.2001. The sole ground

taken for negating the claim of the writ petitioner is that he was not having

been appointed against the sanctioned post and as such he is not entitled to

get the salary.

32. We have considered the factual aspect involved therein, wherefrom it

is evident that the writ petitioner has been appointed as Physical Trained

Teacher in the Matric Trained Scale which have been approved by the

District Superintendent of Education vide order dated 27.07.2001. The main

ground which has been taken by the appellants-State that there is no

sanctioned post of Physical Trained Teacher in the school.

We have already answered the issue by making reference of the

executive instruction dated 17.02.1981 as contained in Memo no.197 which

have been issued following the State Order No.690 dated 17.02.1966 which

mandates that in each and every school 5% seats of physical trained teacher

will be get reserved. The plea has been taken that the circular dated

17.02.1981 has been repealed by virtue of Rule 1991 but the said argument

has already been discarded by us, as referred hereinabove and therefore, we

are not impressed with such argument of not having the post of Physical

Education Teacher in the school in question.

The writ petitioner has been appointed after the due process by

issuance of letter by the selection committee, however, the plea has been

taken that there was no Government representative in the selection

committee. But, as would appear from the impugned order wherein a

reference of writ petition being W.P.(S) No.2547 of 2009 has been made, in

which the issue of participation of departmental representative in the

selection committee has been said to be not a valid ground for questioning

the appointment and as such, once the decision has already been taken which

has attained finality, so far as this ground is taken, the appellant-State is not

allowed to re-agitate the same.

33. Learned Single Judge taking into consideration the entire aspect of the

matter in entirety which we have also considered, are of the considered view

that no infirmity has been committed by the learned Single Judge by

showing interference in the impugned order and as such, we are not inclined

to interfere with the same.

Accordingly, the instant appeal being L.P.A No.196 of 2018 fails and

is dismissed.

34. In the result, both the appeals stand dismissed.

35. Consequently, I.A. No.7612 of 2019 in L.P.A No.204 of 2019 and I.A

No.2038 of 2020 and I.A. No.3557 of 2018 in L.P.A No.196 of 2018 stand

disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saket/-

A.F.R.