Jharkhand High Court
Rizwana Khatoon vs The State Of Jharkhand on 1 August, 2023
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.421 of 2022
----
Rizwana Khatoon, aged about 56 years, wife of Asrar Ahmad,
resident of Indira Market, Church Road, P.O. & P.S.-Lower
Bazar, District-Ranchi.... ... Writ petitioner/Appellant
Versus
1. The State of Jharkhand
2. The Director, Secondary Education, School Education
and Literacy Department, Government of Jharkhand,
having office at Telephone Bhawan, Dhurwa, P.O.-
Dhurwa, P.S.-Jagannathpur, District-Ranchi.
3. The District Education Officer, Ranchi, having office at
P.O.-GPO, P.S.-Kotwali, District-Ranchi.
4. The Secretary/Headmistress, Rayeen Urdu Girls + 2
High School, Lake Road, Main Road, P.O.-GPO, P.S.-
Hindpiri, District-Ranchi.
... ... Respondents/Respondents
With
L.P.A. No.441 of 2022
----
Kaneez Fatma, aged about 63 years, wife of Bashir Ahmad,
resident of Village-Nai Sarai, P.O.-Nai Sarai, P.S.-Nagri,
District-Ranchi. ... ... Writ Petitioner/Appellant
Versus
1. The State of Jharkhand
2. The Director, Secondary Education, School Education
and Literacy Department, Government of Jharkhand,
having office at Telephone Bhawan, Dhurwa, P.O.-
Dhurwa, P.S.-Jagannathpur, District-Ranchi.
3. The District Education Officer, Ranchi, having office at
P.O. & P.S.-Ranchi, District-Ranchi.
4. The Secretary/Headmistress, Rayeen Urdu Girls + 2
High School, Lake Road, Main Road, P.O.-GPO, P.S.-
Daily Market, District-Ranchi.
-2-
... ... Respondents/Respondents
With
L.P.A. No.506 of 2022
With
I.A. No.9884 of 2022
----
Miss Wajda Tabassum, aged about 58 years, daughter of S.
Saghirul Hassan, resident of Jamia Nagar, House No.115,
Road No.1, Kadru, P.O.-Doranda, P.S.-Argora, District-
Ranchi. ... ... Writ Petitioner/Appellant
Versus
1. The State of Jharkhand
2. The Director, Secondary Education, School Education
and Literacy Department, Government of Jharkhand,
having office at Telephone Bhawan, Dhurwa, P.O.-
Dhurwa, P.S.-Jagannathpur, District-Ranchi.
3. The District Education Officer, Ranchi, having office at
P.O. & P.S.-Ranchi, District-Ranchi.
4. The Secretary/Headmistress, Rayeen Urdu Girls + 2
High School, Lake Road, Main Road, P.O.-GPO, P.S.-
Daily Market, District-Ranchi.
... ... Respondents/Respondents
With
L.P.A. No.133 of 2023
With
I.A. No.4113 of 2023
----
Sushma Toppo , aged about 60 years, wife of Sri Arun Kumar
Ekka, resident of Anandpuri, Birwa Colony, College More,
Hazaribag, P.O. & P.S.-Hazaribag, District-Hazaribag.
... ... Writ Petitioner/Appellant
Versus
1. The State of Jharkhand
2. The Director, Secondary Education, Government of
Jharkhand, having office at Telephone Bhawan,
Dhurwa, P.O.-Dhurwa, P.S.-Jagannathpur, District-
Ranchi.
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3. The District Education Officer, Hazaribag, having office
at P.O. & P.S.-Hazaribag, District-Hazaribag.
4. The Secretary/Headmistress, Carmel Girls High School,
Hazaribag, P.O. & P.S.-Hazaribag, District-Hazaribag.
...
... Respondents/Respondents
-------
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mr. Manoj Tandon, Advocate
Mrs. Neha Bhardwaj, Advocate
Mr. Adamya Kerketta, Advocate
For the State : Mr. Gaurang Jojodia, AC to GP-II
[In LPA No.421/2022]
: Mr.Indranil Bhaduri, SC-IV
Mr. Suman Marandi, AC to SC-IV
[In LPA No.441/2022]
: Mr. Karan Shahdeo, AC to SC-II
[In LPA No.506/2022]
: Mr. Anil Kumar Singh, AC to GP-I
[In LPA No.133/2022]
--------
Order No.13/ Dated 01.08.2023
Per Sujit Narayan Prasad, J.
I.A. No.9884 of 2022 in L.P.A. No.506 of 2022
1. This interlocutory application has been preferred under Section 5
of the Limitation Act for condoning the delay of 118 days in preferring
this Letters Patent Appeal.
2. Heard.
3. In view of the submissions made on behalf of the parties and the
averments made in the interlocutory application, we are of the view
that the appellant was prevented by sufficient cause in preferring the
appeal within the period of limitation.
4. Accordingly, I.A.No.9884 of 2022 is allowed and delay of 118
days in preferring the appeal is condoned.
I.A. No.4113 of 2023 in L.P.A. No.133 of 2023
5. This interlocutory application has been preferred under Section 5
of the Limitation Act for condoning the delay of 245 days in preferring
this Letters Patent Appeal.
6. Heard.
7. In view of the submissions made on behalf of the parties and the
averments made in the interlocutory application, we are of the view
that the appellant was prevented by sufficient cause in preferring the
appeal within the period of limitation.
8. Accordingly, I.A.No.4113 of 2023 is allowed and delay of 245
days in preferring the appeal is condoned.
L.P.A. No.421 of 2022, L.P.A. No.441 of 2022, L.P.A.No.506 of 2022
& L.P.A. No.133 of 2023
9. All the appeals since arise out of common order having the
identical issue, therefore, the same is being heard with the consent of
the parties.
10. The intra-court appeals preferred under Clause-10 of Letters
Patent is directed against the common order/judgment dated
21.06.2022 passed by the learned Single Judge of this Court in
W.P.(S) Nos.2857 of 2016, 3522 of 2016, 3310 of 2016 and 3163 of
2016, whereby and whereunder, the decision has been taken in memo
no.908 dated 28.04.2016 issued by the Director (Secondary
Education), Jharkhand, by which, the approval of appointments on the
post of Assistant Teachers in the concerned Government aided
minority school was rejected, has been refused to be interfered with by
dismissing the writ petitions.
11. The brief facts of the case, as per the pleading made in the writ
petitions, which are required to be enumerated reads as under :-
12. It is the case of the writ petitioners that the school management
committee of Rayeen Urdu Girls +2 High School, Ranchi and Carmel
Girls High School, Hazaribag, a Government aided minority school,
after following the guidelines issued from time to time by the
Government of Jharkhand, published an advertisement in Daily
Prabhat Khabar on 17.01.2010, 22.05.2011 and 19.06.2009, seeking
applications from experienced graduate candidates with B.Ed. (Urdu
knowing) for appointment to the post of Teacher in different subjects in
the said school. The writ petitioners, being eligible in all respects,
applied for appointment to the post of Teacher. The writ petitioners
appeared and qualified in the test conducted by the school
management. Thereafter, appointment letters were issued to the writ
petitioners Rizwana Khatoon and Kaneez Fatma on 12.2.2010 and
18.2.2010 respectively and they joined on 20.02.2010. Similarly,
appointment letters were issued to the writ petitioners, namely, Wajda
Tabassum and Sushma Toppo on 21.6.2011 and 04.07.2009 and they
had joined on 22.6.2011 and 06.07.2009 respectively. Therefore, the
Secretary of the concerned Schools sent proposal to the Director,
Secondary Education, Ranchi and District Education Officer,
Hazaribag for giving approval of writ petitioners' appointment as
Teacher. However, finally vide impugned letter dated 28.4.2016, the
cases of the writ petitioners for approval of their appointments, have
been rejected by the respondent no.2, which is contrary to the decision
of Government contained in Memo No.34 dated 13.01.1986.
13. It appears from the factual aspects that all the writ petitioners
have been appointed by the decision of the Managing Committee of
Rayeen Urdu Knowing +2 High School, Ranchi and Carmel Girls High
School, Hazaribag, a government aided minority schools, in pursuance
to the advertisement published in Daily Prabhat Khabar on
17.01.2010, 22.05.2011 and 19.06.2009. The writ petitioners, having
required educational qualifications of B.Ed. (Urdu Knowing) as also
along with experience certificate, had applied to the post of Teacher in
the different subjects in the said schools.
14. The writ petitioners had appeared and were qualified and
declared to be successful for appointment to the said post.
Accordingly, they joined on 20.02.2010, 22.6.2011 and 06.07.2009.
15. The writ petitioners have started discharging their duties but the
Government has not accorded approval, rather, the request made in
that regard by the Managing Committee for granting said approval was
rejected vide order dated 28.4.2016 as contained in memo no.908 on
the ground that the writ petitioners have been appointed after having
crossed the maximum age prescribed by the State Government, i.e.,
after 35 years.
16. The writ petitioners, being aggrieved with the aforesaid, have
preferred the writ petitions.
17. The State has taken the ground that the age as prescribed by the
State Government in the circular dated 14.06.2008 and 09.12.2010 will
be applicable and since, the writ petitioners have been appointed
beyond the age prescribed in the said circular, therefore, their services
have been refused to be approved.
18. The learned Single Judge, on consideration of the aforesaid
circular, has agreed to the view of the State Government and has
declined to interfere with the impugned order, against which, the
present appeals, have been filed.
19. Learned counsel appearing for the appellants-writ petitioners has
submitted that the ground in rejecting the approval of joining of the writ
petitioners holding about the applicability of the circular dated
14.06.2008 and 09.12.2010, is absolutely incorrect, since, the said
circulars are only applicable to the teachers working in the State
Government, which are not applicable so far as the minority schools
are concerned. But, without taking into consideration the aforesaid
aspect of the matter, the learned Single Judge has refused to interfere
with the impugned order and as such, the same is not sustainable in
the eye of law.
20. The ground has been agitated that in absence of any rule
prescribing the maximum age for recruitment in the minority aided
school, the non-approval of the services of the writ petitioners, cannot
be said to be proper by applying the criteria laid down which has been
enacted for the purpose of recruitment in the Government schools.
21. But this aspect of the matter has not been considered in right
perspective and as such, the impugned order is not sustainable in the
eye of law.
22. Per Contra, learned counsel appearing for the State-respondents
has submitted by defending the order impugned on the ground that in
absence of rule regarding the eligibility criteria in the minority school,
the rule which has been fixed for the purpose of appointment of
Assistant Teachers in the Government schools, will be applicable even
in the case of appointment in the minority school.
23. Learned counsel, further submitted that the writ petitioners,
admittedly have been appointed beyond the age as prescribed by the
State Government in its circular dated 14.06.2008 and hence, if in that
circumstance, the services having not been approved, the same
cannot be said to suffer from an error.
24. It has been contended by referring to the circular dated
09.12.2010, wherein also, the general communication has been made
by the Secretary of the concerned Department to approve the services
of such teachers only if the Managing Committee of the concerned
minority school has appointed the teaching staffs on the basis of the
circular dated 14.06.2008.
25. Learned counsel has further submitted by relying upon the rule
of Bihar Secondary Education Board, 2nd Amendment, Ordinance,
1980 which contains provision to have the eligibility criteria for the
purpose of making appointment in the minority school, wherein, the
same criteria is to be considered in the matter of appointment in the
minority aided school, which is applicable to the school owned by the
State Government, therefore, the statutory demand is also that the
aided minority school is required to fill up the post of teachers only on
the basis of eligibility criteria regarding the age applicable to the
concerned employee.
26. Learned State Counsel, on the basis of the aforesaid premise,
has submitted that the writ petitioners since, have been appointed
contrary to the criteria applicable for the Government owned school
and in that circumstance, their services have not been approved and
by taking into consideration the aforesaid ground, if the learned Single
Judge has refused to interfere with the Administrative decision, the
same cannot be said to suffer from an error.
27. We have heard the learned counsel for the parties, perused the
documents available on record as also considered the finding recorded
by the learned Single Judge in the impugned order.
28. The admitted fact herein is that the writ petitioners have been
appointed as Assistant Teachers in the minority aided school in
pursuance to the advertisement published on 17.01.2010, 22.05.2011
and 19.06.2009.
29. The issue which is to be considered in this case, i.e.,
(i) As to whether the writ petitioners who have been appointed
beyond the age of 35 years, can it be said to be illegal;
(ii) Whether the eligibility criteria prescribing the maximum age
limit in absence of any rule to that effect making it applicable for the
minority aided school, can be taken as a ground for non-approval of
services of the writ petitioners by considering the prescription of
maximum age as applicable in the Government circular without its
adoption by the State Government for its application to the minority
aided school; and
(iii) Whether the competent authority of the State Government is
justified in rejecting the case of the writ petitioners from granting
approval of their services by relying upon the maximum age
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prescription as contained in the Government circular.
30. All the three issues are interlinked, therefore, the same are being
answered together.
31. This Court, before answering the said issues, is of the view that
the reference of circular dated 14.06.2008 and so called circular dated
09.12.2010 as has been referred by the learned Single Judge in the
impugned order, basis upon which, the learned Single Judge has
refused to interfere with the Administrative decision of the authority,
are required to be referred herein.
32. The circular dated 14.06.2008 is applicable for filling up of the
post in the government owned school, wherein, the maximum and
minimum age has been prescribed category wise, for ready reference,
the relevant part of the said circular is being referred as under:-
^^------------ --------ftl iapkax o"kZ esa fu;qfDr ds fy, foKkiu fudkyk tk;sxk
ml iapkax o'kZ dh igyh tuojh dks meehnokj dh mez U;wure bDdhl ¼21½
o'kZ rFkk vf/kdre vk;q dksfVokj fuEu:is.k gksxh%
fodykax
gsrq
1- lkekU; dksfV 40 o'kZ 45 o'kZ
2- efgyk 43 o'kZ 48 o'kZ
¼vukjf{kr@fiNM+k
oxZ@vR;ar fiNM+k oxZ½
3- vU; fiNM+k oxZ 42 o'kZ 47 o'kZ
4- vuqlwfpr tkfr 45 o'kZ 50 o'kZ
¼iq:'k@efgyk½
5- vuqlwfpr tutkfr 45 o'kZ 50 o'kZ
¼iq:'k@efgyk½
>kj[k.M yksd lsok vk;ksx }kjk vuq"kaflr es/kk lwph ls mPp fo|ky;ksa
esa lgk;d f"k{kd ds in ij fu;qfDr funs"kd] ek/;fed f"k{kk }kjk dh
tk;sxhA**
33. Learned Single Judge has made mention of circular issued on
09.12.2010. The said so called circular, appended at Annexure-B to
the counter affidavit filed on behalf of the State in the writ petition.
34. It is evident from the same that it cannot be construed to be a
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circular, rather, it is merely a communication made by the Secretary of
the Human Resources Development Department addressed to the
District Education Officers communicating to all the concerned to grant
approval of the services of the teaching and non-teaching employees
of the minority aided school if they are not fulfilling the required
educational qualification. The relevant part of the said letter is being
referred as under:-
"ekuo lalk/ku fodkl foHkkx
izs"kd]
e`nqyk flUgk]
ljdkj ds lfpoA
lsok esa]
lHkh ftyk f'k{kk inkf/kdkjhA
jk¡ph] fnukad 9@12@10
fo"k;%&jkT; ds ekU;rk izkIr xSj ljdkjh vYila[;d ek/;fed
fo|ky;ksa ds f"k{kd@f"k{kdsRrj deZpkfj;ksa dh fu;qfDr esa
>kj[kaM jktdh;d`r ek/;fed fo|ky; ¼lsok'krZ½ fu;ekoyh ds
mica/kksa dk ikyu djus ds laca/k esaA
egk'k;]
mi;qZDr fo"k; ds laca/k esa dguk gS fd izk;% ,slk ns[kk tk jgk gS
fd jkT; ds ekU;rk izkIr xSj ljdkjh vYila[;d ek/;fed fo|ky;ksa
ds iz/kkuk/;kid] f'k{kd ,oa f"k{kdsRrj dfeZ;ksa dh fu;qfDr esa jkT; ds
jktdh;d`r ek/;fed fo|ky; ¼lsok"krZ½ fu;ekoyh ds mica/kksa dk
ikyu ugha fd;k x;k gSA dbZ ,sls n`'Vkar vk;s gSa tgk¡ fo|ky;ksa ds
izc/a k lfefr }kjk f"k{kdksa dh fu;qfDr esa jkT; ljdkj }kjk jktdh;d`r
ek/;fed fo|ky; ¼lsok'krZ½ fu;ekoyh esa izko/kkfur mez lhek ls
vf/kd mez lhek ds f"k{kdksa dh fu;qfDr dj yh xbZ gSA blh rjg dbZ
ekeyksa esa ,slk ns[kk x;k gS fd f"k{kd@f"k{kdsRrj dfeZ;ksa dh fu;qfDr
esa fu/kkZfjr vgZrk dk mYya?ku fd;k x;k gSA izca/k lfefr }kjk dh xbZ
bl izdkj dh fu;qfDr esa jkT; ljdkj dk vuqeksnu nsuk laHko ugha gks
ikrk gS rFkk ;g fcUnq vuko";d fookn Hkh iSnk djrk gSA
2- ;gk¡ mYys[kuh; gS fd jkT; ds ekU;rk izkIr xSj ljdkjh
vYila[;d ek/;fed fo|ky;ksa esa f"k{kdksa dks jkT; ds jktdh;d`r
ek/;fed fo|ky;ksa ds f'k{kdksa dh Hkkafr lHkh lqfo/kk,¡ izkIr gS rFkk mUgsa
jktdh;d`r ek/;fed fo|ky;ksa ds f"k{kdksa ds leku osrueku gh ns;
gksrk gSA vr% fu;qfDr ds ekeys esa fu;ekoyh esa fu/kkZfjr fdlh Hkh
vgZrk dks f"kfFky djuk fdlh Hkh izdkj ls rdZlaxr ugha gSA
vr% vkils vkxzg gS fd vius v/khuLFk xSj ljdkjh vYila[;d
ek/;fed fo|ky;ksa dks blls voxr djk fn;k tk; lkFk gh fu;qfDr
ds laca/k esa fu/kkZfjr vgZrk ikyu ugha djus ij vius Lrj ls gh izLrko
dks dkj.k crkrs gq, vLohd`r dj fn;k tk; ,oa bls dnkfi vuqeksnu
ds fy, foHkkx dks ugha Hkstk tk; vU;Fkk vkids fo:) gh dkjZokbZ
izkjaHk dh tk ldrh gSA
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d`i;k vius Lrj ls vius v/khuLFk fo|ky;ksa ds chp ifjpkfjr
djuk lqfuf"pr djsaA"
35. This Court from the impugned order has found that the learned
Single Judge has given consideration of the circular dated 14.06.2008
and coupled with the same, the communication dated 09.12.2010
considering it to be a circular, has passed the impugned order.
36. The communication dated 09.12.2010 is for the purpose of
enforcement of the Government circular prescribing therein the
required qualification/criteria.
37. The circular dated 14.06.2008 is a circular in the eye of law,
since, the same has been issued in the name of the Governor of the
State and as such, it will be construed to be executive instruction
within the meaning of Article 166(3) of the Constitution of India.
38. But the communication dated 09.12.2010 can be construed to a
circular, this is also a question to be considered herein.
39. The issuance of circular or resolution vests upon the Governor of
the State under Article 166(3) of the Constitution of India and if such
executive instruction is being issued either by way of resolution or
circular, the same needs to be approved by the Cabinet before getting
the seal of the Governor, since, we are living in collective system of
Government, wherein, no individual functionary of the State is having
any power to take decision.
40. The communication dated 09.12.2010 is issued under the
signature of the Secretary of the concerned department addressed to
the District Education Officers of the Districts for the purpose of
compliance of educational qualification meant for teachers of the
government owned school applying it to the teaching staffs of the
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minority aided school. But, the said communication, according to our
considered view, cannot be construed to be a policy decision of the
State, rather, it is only a communication issued under the signature of
the Secretary addressed to the District Education Officers of the
different Districts.
41. The Secretary in the individual capacity has got no power to
interfere with the internal affairs of the Managing Committee only in the
garb of extending the benefit by way of grant-in-aid to the minority
aided school, rather, it is the wisdom of the State to make out a rule
either under proviso to Article 309 of the Constitution of India or under
Article 166(3) of the Constitution of India by taking the policy decision
by way of executive instruction and if such decision will be taken by
the State either under the proviso to Article 309 or under Article 166(3)
of the Constitution of India, the same will have its application to the
government minority school. But it cannot be on the strength of
communication issued by the Secretary of the concerned department
as the ground has been taken while justifying the action of non-
approval of the services of the writ petitioners.
42. This Court, therefore, is of the view that the communication
dated 09.12.2010 is merely a communication issued under the
signature of the Secretary and not by way of a policy decision taken by
the State Government.
43. The emphasis has been given by the learned State Counsel
upon the communication dated 09.12.2010, basis upon which, the
decision of non-approving of the services of the writ petitioners, has
been taken.
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44. But when the communication dated 09.12.2010 is not a policy
decision of the State Government, the question is that why the
decision adverse to the interest of the writ petitioners, will be allowed
to be taken in absence of any policy decision or rule issued in this
regard by the State Government.
45. Therefore, this Court is of the view that non-approval of services
of the writ petitioners based upon the communication dated
09.12.2010, cannot be said to be justified and accordingly, it is held to
be unjustified.
46. The argument has been advanced regarding the applicability of
rule of Bihar Secondary Education Board, 2nd Amendment, Ordinance,
1980, wherein, provision has been made that the parameter which is
to be followed in the matter of appointment of teachers of the
government owned school, is required to be followed also in the case
of appointment of Assistant Teachers in the minority aided school.
47. This Court in order to appreciate the argument, as to whether the
provision of rule of Bihar Secondary Education Board, 2nd Amendment,
Ordinance, 1980 is applicable or not, has gone across the provision of
the Rule, 1980.
48. It requires to refer herein that the erstwhile State of Bihar having
considered the fact that a number of private secondary schools were
established and managed by the private individuals or societies,
therefore, considered it necessary to take over the Management and
control of the non-government schools for better organization and
development of secondary education in the State. That laid in
promulgation of an Ordinance on August 11, 1980, as the Bihar Non-
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Government Secondary Schools (Taking over of Management and
Control) First Ordinance. This Ordinance was later on replaced by
another Bihar Ordinance No.74 of 1981 on April 22, 1981. The State
legislature converted the Ordinance into the Bihar Non-Government
Secondary Schools (Taking over of Management and Control) Act,
1981.
49. The Act as indicated by the preamble is to provide for taking over
the management and control of the Non-Government Secondary
Schools by the State Government, for improvement, better
organization and development of Secondary Education in the State of
Bihar. It appears from the aforesaid provision that the same is
applicable for the secondary schools.
50. We are dealing with the issues of secondary schools, therefore,
the said Act is relevant to be considered, upon which, the reliance has
been placed.
51. The aforesaid Act provides provision as under Section 18 of the
Act, 1981 for recognition of minority secondary schools. The aforesaid
Section in entirety is being referred as under:-
"18. Recognition of minority secondary schools.--(1)
The schools declared a minority school under the
provisions of the Bihar Secondary Education Board Act,
1976 (Bihar Act 25 of 1976) and the Bihar Secondary
Education Board (Second Amendment) Ordinance, 1980
(Bihar Ordinance 82 of 1980) shall be deemed to have
been recognised under the provisions of this Act.
(2) The State Government may, by notification,
recognise as a minority secondary school, such
secondary school which has been established by a
minority community on the basis of religion or language
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for the purposes of meeting the educational requirement
and for the protection of culture of their section and which
fulfils the prescribed condition of recognition.
(3) The minority secondary school accorded
recognition under sub-sections (1) and (2) shall be
managed and controlled under the following provisions:
(a) Every minority secondary school shall have a
managing committee registered under the Societies
Registration Act, 1862 and shall have written by-laws
regarding its constitution and function.
(b) According to the prescribed qualification laid down
by the State Government for the teachers of the
nationalised secondary schools and within the number of
sanctioned posts, the managing committee of the minority
secondary schools shall appoint the teacher with the
concurrence of the school service board constituted
under Section 10 of this Act. Provided that while
considering the question of giving approval to
appointment of any teacher under this sub-section the
board shall only scrutinise as to whether the proposed
appointment is in accordance with the rules laying down
the qualification and the manner of making appointment
framed by the State Government has been followed or
not, and no more.
(c) There shall be rules regarding the service
conditions of teachers of minority schools based on
natural justice and the prevailing law, a copy of which
shall be sent to the State Government.
(d) The managing committee with the approval of the
School Service Board shall have powers to remove a
teacher, to terminate his services, to dismiss and to
discharge him from service. Provided that for the purpose
of approval any disciplinary action against the teacher by
the managing committee, the Board shall scrutinise
whether disciplinary proceedings have been in
accordance with the rules and no more.
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(e) Mentally and physically incapacitated person shall
not be appointed as teacher or non-teaching staff of the
school.
(f) No grant shall be admissible for payment of salary
of a teacher or a non-teaching staff if appointed or
retained beyond 58 years of age.
(g) Only such fees shall be charged from the students
as are prescribed by the State Government. Prior
approval of the State Government shall be necessary to
charge higher fees than what is prescribed.
(h) The schools shall be open to inspection on any
working day by the authorised inspecting officers of the
Education Department, the civil authority and authorised
officers of Health Department.
(i) It shall be their duty to obey instructions regarding
admission and transfer of the students, discipline and
punishment, records and accounts, curricular and co-
curricular activity, rules regarding health and cleanliness
issued or made by the State Government.
(j) The State Government shall have powers to issue
instructions not inconsistent with the provisions of Articles
29 and 30 of the Constitution for efficient management
and for improving the standard of teaching and it shall be
obligatory for the recognised minority schools to comply
with them.
(k) In the event of violation of this section and the rules
made thereunder and the instructions issued under it, the
said managing committee may make an application within
sixty days of the date of the order to the officer authorised
by the State Government, against the withdrawal of
recognition or withholding or stopping grants and the
authorised officer shall, after hearing the case, take his
decision and it shall be binding."
52. It is evident from the provision of Section 18(3)(b) which
stipulates that the prescribed qualification laid down by the State
Government for the teachers of the nationalized secondary schools
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and within the number of sanctioned posts, the managing committee of
the minority secondary schools shall appoint the teacher with the
concurrence of the school service board constituted under Section 10
of this Act.
53. Provided that while considering the question of giving approval to
appointment of any teacher under this sub-section the board shall only
scrutinize as to whether the proposed appointment is in accordance
with the rules laying down the qualification and the manner of making
appointment framed by the State Government has been followed or
not, and no more.
54. Sub-section (3)(f) of Section 18 stipulates that no grant shall be
admissible for payment of salary of a teacher or a non-teaching staff if
appointed or retained beyond 58 years of age.
55. It is, thus, evident from bare perusal of sub-section (3)(b) of
Section 18 that the said provision speaks about the prescription of
qualification laid down by the State Government for the teachers of the
nationalized secondary schools to be applicable in the minority aided
school.
56. Sub-section (3)(f) of Section 18 contains a provision for not
granting the benefit which shall be admissible for payment of salary of
a teacher or a non-teaching staff if appointed or retained beyond 58
years of age.
57. The aforesaid provision, therefore, explicitly provides if read
together, that there is no barrier of age for appointment of Assistant
Teacher in the minority aided school, rather, only consideration at the
time of granting approval which is to be looked into by the State
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Government, is regarding the qualification, so that, there may not be
any compromise with the educational standard by keeping the
Assistant Teacher, even though they are having no educational
qualification, as required for appointment of Assistant Teacher in the
Government owned school. The State Government, in such
circumstances, will not approve for issuance of grant-in-aid.
58. Sub-section 3(f) of Section 18 also clarifies that grant shall not
be admissible for the purpose of release of salary of a teacher or non-
teaching staff, if appointed or retained beyond 58 years of age,
meaning thereby, if a candidate has been appointed either in the
teaching capacity or non-teaching capacity, the grant will not be
admissible, if appointed beyond the age of 58 years or retained
beyond the age of 58 years.
59. Therefore, as per the rule of 1981, the State Government is only
concern so far as release of grant if the one or the other, has been
appointed or retained the service beyond the age of 58 years.
60. In other words, it will be construed that there will be no hindrance
or objection on the part of the State in not releasing the benefit of
grant-in-aid, if appointed beyond the age of 58 years.
61. Herein, it also requires to refer herein that the educational
qualification cannot be considered to be eligibility criteria, rather, the
eligibility criteria within the meaning of 'eligibility' come under the fold
of qualification, since, the same is additional norms laid down by the
rule making authority.
62. Difference in between the 'eligibility' and 'qualification' has been
discussed by the Hon'ble Apex Court in the judgment rendered in the
- 20 -
case of Dr. Preeti Srivastava & Anr. Vs. State of M.P. & Ors.,
reported in [(1999) 7 SCC 120], wherein, at pagraph-39, the same has
been explained as under:-
"39. The respondents have emphasised the
observation that admission has to be made by those
who are in control of the colleges. But, the question is,
on what basis? Admissions must be made on a basis
which is consistent with the standards laid down by a
statute or regulation framed by the Central
Government in the exercise of its powers under Entry
66 List I. At times, in some of the judgments, the
words "eligibility" and "qualification" have been used
interchangeably, and in some cases a distinction has
been made between the two words -- "eligibility"
connoting the minimum criteria for selection that may
be laid down by the University Act or any Central
statute, while "qualifications" connoting the additional
norms laid down by the colleges or by the State. In
every case the minimum standards as laid down by
the Central statute or under it, have to be complied
with by the State while making admissions. It may, in
addition, lay down other additional norms for
admission or regulate admissions in the exercise of its
powers under Entry 25 List III in a manner not
inconsistent with or in a manner which does not dilute
the criteria so laid down."
63. Similar view has been taken by the Hon'ble Apex Court in the
judgment rendered in the case of State of Gujarat & Ors. Vrs. Arvind
Kumar T. Tiwari & Anr., reported in [(2012) 9 SCC 545], wherein, at
paragraph-9, it has been held as under:-
"9. The eligibility for the post may at times be
misunderstood to mean qualification. In fact,
eligibility connotes the minimum criteria for selection,
that may be laid down by the executive
- 21 -
authority/legislature by way of any statute or rules,
while the term "qualification", may connote any
additional norms laid down by the authorities.
However, before a candidate is considered for a post
or even for admission to the institution, he must fulfil
the eligibility criteria. (Vide Preeti Srivastava v. State
of M.P. [(1999) 7 SCC 120 : AIR 1999 SC 2894] )"
64. The purpose of referring the said judgment is that qualification
can be added with the eligibility criteria only by virtue of rule framed in
this regard by the State Government.
65. But even accepting that Rule 1981 is there for secondary
schools making it applicable to the minority aided school, then also it
would be evident from the provision of Section 18(3)(b) that the same
only speaks about the prescription of qualification and not the other
eligibility criteria coupled with the provision of Section 18(3)(f) where
the 'grant-in-aid' is to be made admissible if the person concerned has
been appointed prior to the age of 58 years, however, no grant shall be
admissible if appointed or retained beyond 58 years of age.
66. The question of scope of Bihar Non-Government Secondary
Schools (Taking over of Management and Control) Act, 1981 fell for
consideration before the Hon'ble Apex Court in the case of All Bihar
Christian Schools Association and Anr. Vrs. State of Bihar & Ors.,
reported in [(1988) 1 SCC 206], wherein, the constitutionality of
Section 3 and Section 18(3) has been considered.
67. The Hon'ble Apex Court has considered the Section 18 of the
aforesaid Act particularly sub-section 3 thereof and while holding the
constitutional validity on the ground of interference by the State
Government in the internal affairs of the Management of the Managing
- 22 -
Committee of the minority aided school.
68. The Hon'ble Apex Court on consideration of implication of the
aforesaid provision has been pleased to hold that clause (c) and (d) of
Section 18(3) are regulatory in nature which requires the Managing
Committee to frame rules of employment consistent with the principle
of natural justice and the prevailing law. No outside agency is required
to frame rules of employment of teachers instead the management
itself is empowered to frame rules. Therefore, there is no element of
interference with the management's right to administer a minority
school.
69. It has further been held therein that clause (b) provides for two
things, firstly it requires the managing committee of a minority school
to appoint teachers possessing requisite qualification as prescribed by
the State Government for appointment of teachers of other
nationalized schools, secondly, the managing committee is required to
make appointment of a teacher with the concurrence of the School
Service Board constituted under Section 10 of the Act.
70. Proviso to clause (b) lays down that the School Service Board
while considering the question of granting approval to the appointment
of a teacher, shall ascertain if the appointment is in accordance with
the rules laying down qualifications, and manner of making
appointment framed by the State Government. The proviso makes it
clear that the School Service Board has no further power to interfere
with the right of managing committee of a minority school in the
appointment of a teacher. Under clause (b) the managing committee is
required to make appointment of a teacher with the concurrence of the
- 23 -
School Service Board.
71. The expression 'concurrence' means approval. Such approval
need not be prior approval, as the clause does not provide for any
prior approval.
72. Object and purpose underlying clause (b) is to ensure that the
teachers appointed in a minority school should possess requisite
qualifications and they are appointed in accordance with the procedure
prescribed and the appointments are made for the sanctioned
strength.
73. The selection and appointment of teachers is left to the
management of the minority school; there is no interference with the
managerial rights of the institution. In granting approval the School
Service Board has limited power. The appointment of qualified
teachers in a minority school is a sine qua non for achieving
educational standard and better administration of the institution.
74. Clause (b), therefore, is regulatory in nature to ensure
educational excellence in the minority school. Clause (c) requires a
minority school to frame rules regulating conditions of service of its
teachers; such rules should be consistent with principles of natural
justice and the prevailing law.
75. It has further been held that Section 18(3)(f) which provides that
the State shall not pay any grant towards the payment of salary of a
teacher or other employee of a minority institution if he is appointed or
permitted to be retained beyond 58 years of age. In the State of Bihar,
the age of superannuation is fixed at 58 years for its employees.
Consistent with that policy this clause provides that public funds of the
- 24 -
State shall not be used for the employment of a person in service who
may have crossed 58 years of age. This however, does not place any
restriction on the right of the management of the minority institution to
employ or retain a person beyond 58 years of age; the management is
free to do so but if the management does so, the State shall not be
responsible for paying grants towards the salary of such teacher or
employee. This provision does not in any way interfere with the
minorities' right of administration of its institution, for ready reference,
paragraphs-13 and 18 of the judgment rendered by the Hon'ble Apex
Court in the case of All Bihar Christian Schools Association and
Anr. Vrs. State of Bihar & Ors.(supra), are being referred as under:-
"13. Section 18(3) provides that recognised minority
secondary schools shall be managed and controlled in
accordance with the provisions contained in clauses (a)
to (k). Clause (a) requires a minority secondary school to
have a managing committee registered under the
Societies Registration Act, 1862 and to frame written by-
laws regulating constitution and functions of the
managing committee. The by-laws regarding the
constitution of the managing committee are required to
be framed by the minority institution itself. The State or
any other authority has no power or authority to impose
any terms or conditions for the constitution of the
managing committee. If a society running a minority
institution frames written by-laws providing for the
constitution of managing committee entrusted with the
function of running and administering its school it would
ensure efficient administration. This clause is in the
interest of the minority institution itself, as no outsider is
imposed as a member of the managing committee, there
is no interference with the minorities' right to administer
its school. Clause (b) provides for two things, firstly it
requires the managing committee of a minority school to
appoint teachers possessing requisite qualifications as
- 25 -
prescribed by the State Government for appointment of
teachers of other nationalised schools, secondly, the
managing committee is required to make appointment of
a teacher with the concurrence of the School Service
Board constituted under Section 10 of the Act. Proviso to
clause (b) lays down that the School Service Board while
considering the question of granting approval to the
appointment of a teacher, shall ascertain if the
appointment is in accordance with the rules laying down
qualifications, and manner of making appointment framed
by the State Government. The proviso makes it clear that
the School Service Board has no further power to
interfere with the right of managing committee of a
minority school in the appointment of a teacher. Under
clause (b) the managing committee is required to make
appointment of a teacher with the concurrence of the
School Service Board. The expression "concurrence"
means approval. Such approval need not be prior
approval, as the clause does not provide for any prior
approval. Object and purpose underlying clause (b) is to
ensure that the teachers appointed in a minority school
should possess requisite qualifications and they are
appointed in accordance with the procedure prescribed
and the appointments are made for the sanctioned
strength. The selection and appointment of teachers is
left to the management of the minority school; there is no
interference with the managerial rights of the institution.
In granting approval the School Service Board has limited
power. The appointment of qualified teachers in a
minority school is a sine qua non for achieving
educational standard and better administration of the
institution. Clause (b) is regulatory in nature to ensure
educational excellence in the minority school. Cause (c)
requires a minority school to frame rules regulating
conditions of service of its teachers; such rules should be
consistent with principles of natural justice and the
prevailing law. The clause further requires the minority
institution to submit a copy of such rules to the State
Government. This clause in substance lays down that the
- 26 -
management of a recognised minority school shall frame
rules, regulating conditions of service of teachers and
such rules shall conform to principles of natural justice
and prevailing law. These provisions are directed to avoid
uncertainty and arbitrary exercise of power. If rules are
framed by the management those rules would bring
uniformity in administration and there would be security of
employment to teachers. In a civilised society the
observance of principles of natural justice is an accepted
rule; these principles contain basic rules of fair play and
justice and it is too late in the day to contend that while
administering a minority school the management should
have right to act in contravention of the principles of
natural justice. Clause (c) is regulatory in nature which
requires the managing committee to frame rules of
employment consistent with principles of natural justice
and the prevailing law. No outside agency is required to
frame rules of employment of teachers instead the
management itself is empowered to frame rules. There is
therefore no element of interference with the
management's right to administer a minority school.
18. Clause (e) of Section 18(3) merely provides that
mentally and physically incapacitated person shall not be
appointed as teacher or non-teaching staff of the school.
If mentally and physically incapacitated persons are
appointed to a minority institution it will serve no useful
purpose instead the institution will suffer. Therefore
appointment of disabled persons will not be in the interest
of the administration of a minority school itself. Clause (f)
of Section 18(3) provides that the State shall not pay any
grant towards the payment of salary of a teacher or other
employee of a minority institution if he is appointed or
permitted to be retained beyond 58 years of age. In the
State of Bihar the age of superannuation is fixed at 58
years for its employees. Consistent with that policy this
clause provides that public funds of the State shall not be
used for the employment of a person in service who may
have crossed 58 years of age. This however, does not
place any restriction on the right of the management of
- 27 -
the minority institution to employ or retain a person
beyond 58 years of age; the management is free to do so
but it the management does so, the State shall not be
responsible for paying grants towards the salary of such
teacher or employee. This provision does not in any way
interfere with the minorities' right of administration of its
institution. Clause (g) provides that only such fees shall
be charged from the students as prescribed by the State
Government and the management is not permitted to
charge higher fees except with prior approval of the State
Government. In the counter-affidavit filed on behalf of the
State it has been stated that education up to matriculation
is free in the State and therefore no fees is charged from
the students. Consistent with the general policy the State
has made it a condition of recognition to a minority school
in providing that fees shall be charged from the students
as prescribed by the State Government and if the
management decides to charge higher fees it must seek
the approval of the State Government. This provision is
regulatory in nature. It would not be in the interest of the
minority schools to charge higher fees as that would be
against the interest of the institution itself. If the managing
committee finds that circumstances exist to charge higher
fees to meet the needs of the institution, it may place the
necessary facts and circumstances before the State
Government and in that event the State Government
shall consider the question of granting permission."
76. It is, thus, evident that the Act, 1981 which is regulatory in nature
and the Hon'ble Apex Court has been pleased to clarify its implication
which is only to be looked into by the State Government for the
purpose of having the standard of education which can only be
possible if the educational qualification which has been fixed by the
State Government for appointment of teacher in the government
owned school has been made applicable and there is no other
stipulation and therefore, the Act, 1981 has been held to regulatory.
- 28 -
77. Further, the Hon'ble Apex as under paragraph-18 of the said
judgment has clarified that even beyond the age of 58 years, the
teaching or non-teaching employee can be appointed by the Managing
Committee but in such circumstances, the State Government will not
grant any grant-in-aid. Therefore, the Hon'ble Apex Court has also
considered the fact that there is non-availability of the prescription of
maximum age.
78. This Court, therefore, is of the view that even under the Act,
1981, there is no prescription of maximum age as the ground has been
taken on behalf of the respondent-State of Jharkhand.
79. This Court, therefore, is further of the view that the ground of
applicability of the Act, 1981 is having no force and as such, the same
is hereby rejected.
80. The Managing Committee has made a request for approval but
citing instance on the circular dated 14.06.2008 and communication
dated 09.12.2010, the services have not been approved on the ground
that they have been appointed beyond the maximum age prescribed
by the government circular made for the teachers to be appointed in
the government owned school.
81. This Court has also held hereinabove that the communication
dated 09.12.2010 cannot be said to be a policy decision of the State
Government and as such, there is no question of applicability of age
prescribed in the circular dated 14.06.2008 and further by taking into
consideration the provision of the Act, 1981 as per the discussion
made hereinabove, there was no occasion for the State Government to
reject the issue of approval of services of the writ petitioners by
- 29 -
passing the impugned order.
82. This Court after having discussed the aforesaid fact has
considered the order passed by the learned Single Judge of this Court,
wherefrom, it is evident that the learned Single Judge has considered
the fact that in absence of any rule, a rule to the teaching/non-teaching
employee in the government owned school, will be applicable and the
appointment in such owned school, the maximum age limit is there.
The writ petitioners admittedly have crossed the said age and hence,
as per the government circular dated 14.06.2008, communication
dated 09.12.2010 and 25.04.2013, the denial of the approval by the
competent authority has been considered to be proper.
83. This Court, with due respect, is not in agreement with such
submission in view of the discussion made hereinabove that the
circular dated 14.06.2008 does not speak about its applicability with
the minority aided school as also the communication dated 09.12.2010
cannot be construed to be a policy decision of the State Government.
84. Further, the learned Single Judge has come to the conclusion by
giving a finding regarding the judgment passed by this Court in the
case of Mithilesh Kumar Pandey Vs. The State of Jharkhand &
Ors. [W.P.(S) No.7741/2006] which has been held to be per incuriam,
the same has been passed without taking into consideration the
circular dated 14.06.2008, 09.12.2010 and 25.04.2013.
85. There is no doubt that the judgment which is per incuriam does
not bind the Court, since, per incuriam literally means that it does not
then have to be followed as precedents. Per incuriam applies to mean
'per ignorantiam'. It would almost seem that 'ignorantia juris neminem
- 30 -
excusat' - the said report of law is ignorance of a statute, or of a rule
having statutory effect which would have affected the decision if the
court had been aware of it.
86. The issue of per incuriam has been considered by the Hon'ble
Apex Court in the case of State of Orissa & Anr. Vrs. Mamta
Mohanty, reported in [(2011) 3 SCC 436].
87. This Court has considered the order passed in W.P.(S)
No.7741/2006 which was disposed of vide judgment dated
28.10.2016, by which, a letter dated 12.06.2006 issued by the Director,
Primary Education, Govt. of Jharkhand as also the letter dated
12.01.2007 issued by the Secretary, Yogda Satsang, were quashed
and aside by giving direction for reinstatement of the writ petitioner in
service. Such decision was given by the learned Single Judge in the
aforesaid case by taking into consideration the provision of Section
18(3)(f) of the Bihar Non-Government Secondary Schools (Taking
Over of Management and Control) Ordinance, 1981. However, the said
order was challenged by the State in intra-court appeal being L.P.A.
No.221 of 2017.
88. This Court has also considered the aforesaid judgment (L.P.A.
No.221 of 2017) from which it would be evident from the fact as has
been referred at paragraph-8 wherein the reference of advertisement
published on 27.06.2003 has been made wherein it was clearly
mentioned that the candidate should be preferably under 35 years of
age.
89. But appointment has been made of such candidates who have
crossed the age of 35 years without granting any relaxation.
- 31 -
90. The coordinate Division Bench of this Court on consideration of
the statement of the State in that case which has made to the effect
that circulars/orders governing the field of appointment of Government
employees shall not be applicable to the case of the petitioner and the
only embargo upon the approval of salary was that he should not be
appointed beyond the age of 58 years, cannot be taken into
consideration.
91. But the said statement has not been acceptable by the
coordinate Division Bench of this Court by taking into consideration,
the prescription of age only in the advertisement itself and the writ
petitioner of the said case was over age on the date of advertisement
itself as also on the date of appointment, and there was no age
relaxation in favour of the petitioner by the school management.
92. The coordinate Division Bench has further considered that the
writ petitioner was appointed in the Non-Government Primary School,
but the learned Single Judge while passing the order in W.P.(S)
No.7741 of 2006, has not taken into consideration the aforesaid fact
and accordingly, the order dated 28.10.2016 passed in W.P.(S)
No.7741 of 2006 has been quashed and set aside.
93. Therefore, it is evident from the perusal of the judgment passed
by the coordinate Division Bench of this Court in L.P.A. No.221 of 2017
that the order passed by the learned Single Judge in W.P.(S) No.7741
of 2006 has been quashed and set aside on the ground that the
consideration has not been given about the prescription of age in the
advertisement itself.
94. But herein, we, on perusal of the advertisement, have found that
- 32 -
there is no prescription of the maximum age and hence, on fact, the
judgment passed by the coordinate Division Bench of this Court in
L.P.A. No.221 of 2017, is not applicable in the facts and circumstances
of the instant case.
95. Further, the issue in L.P.A. No.221 of 2017 pertains to Non-
Government Primary School but here the case is of minority aided
school for which, the specific Act, i.e., the Act, 1981 is there and as
yet, there is no rule formulated prescribing the maximum age of
appointment, rather, only rider is under Section 18(3)(f) for not granting
the benefit of grant-in-aid, if appointment has been made beyond the
age of 58 years or the concerned employee has retained beyond the
age of 58 years but that is not the case herein.
96. This Court has considered the finding recorded by the learned
Single Judge in the impugned order that in the advertisement if there is
no prescribed maximum age or maximum age, the same will be
governed by the government decision, cannot be held to be correct
proposition, as per the provision of the Act, 1981 having been
considered by the Hon'ble Apex Court in the case of All Bihar
Christian Schools Association and Anr. Vrs. State of Bihar & Ors.
(supra), otherwise, the issue of interference with the internal affairs of
the Managing Committee will be there which as per the law laid down
by the Hon'ble Apex Court in the aforesaid judgment, is not
permissible.
97. In view of the discussion made hereinabove, the issues are
being answered accordingly.
98. This Court, in the entirety of the facts and circumstances of the
- 33 -
case and as per the discussion made hereinabove, is of the view that
the order passed by the learned Single Judge, requires interference.
99. As such, the order dated 21.06.2022 passed by the learned
Single Judge in W.P.(S) Nos.2857 of 2016, 3522 of 2016, 3310 of
2016 and 3163 of 2016 are hereby quashed and set aside.
100. In the result, the instant appeals stand allowed.
101. In consequence thereof, the writ petitions being W.P.(S)
Nos.2857 of 2016, 3522 of 2016, 3310 of 2016 and 3163 of 2016 also
stand allowed.
102. The respondents' authorities are directed to take the follow up
action at the end of the State Government to be taken within the
stipulated period of three months' from the date of receipt/production of
copy of this order.
103. In consequent to disposal of these appeals, Interlocutory
Application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Rohit/-A.F.R.
