Patna High Court
Rakesh Chandra Jha And Anr vs The Bihar Sanskirt Siksha Board And Ors on 8 August, 2024
Author: Anil Kumar Sinha
Bench: Anil Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5665 of 2013
======================================================
1. Rakesh Chandra Jha Son Of Shri Dhirendra Jha Resident Of Village-
Mohanpur, Police Station- Piprahi, District- Sheohar
2. Ajit Kumar Pathak Son Of Shri Sarbkant Pathak Resident Of Village-
Choraut, Police Station- Rupri, District- Sitamarhi
... ... Petitioner/s
Versus
1. The Bihar Sanskirt Siksha Board, Patna through its Secretary, Government
Of Bihar, Patna
2. Shri Lakshmi Narayan Sanskrit Uchh Vidyalaya, P.O. and P.S.- Choraut,
District- Sitamarhi Through Its Secretary
3. The Headmaster, Shri Lakshmi Narayan Sanskrit Uchh Vidyalaya, P.O. and
P.S.- Choraut, District- Sitamarhi
4. Sri Sanjiv Kumar Mishra Assistant Teacher , Shri Lakshmi Narayan Sanskrit
Uchh Vidyalya, PO and P.S Choraut, District Sitamarhi.
5. Sri Sujit kumar Sumar Assistant Teacher , Shri Lakshmi Narayan Sanskrit
Uchh Vidyalya, PO and P.S Choraut, District Sitamarhi.
6. The Managing Committee of Sri Lakshmi Narayan Sanskrit Uchh Vidyalaya
P.O. and P.S. - Choraut, District - Sitamarhi through its Secretary.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sharvan Kumar, Sr. Adv.
Mr. Vishal Kumar, Advocate
Mr. Dinesh Maharaj
For the Respondent/s : Mr. Satyam Shivam Sundaram
Mr. Siya Ram Shahi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
CAV JUDGMENT
Date : 08-08-2024
1. The petitioners have filed the present writ application
for a direction to the respondents to allow the petitioners to
work against the post of Assistant Teacher after quashing the
letter no. 21 (K) dated 09.01.2011 issued by the Secretary of
Shri Lakshmi Narayan Sanskrit Uchh Vidyalaya (hereinafter
referred to as the "School") by which the services of the
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
2/16
petitioners have been terminated and for further direction to the
respondent authorities to make payment of salary due to the
petitioners and for quashing of Memo No. 3275 dated
10.05.2013
by which the private respondent nos. 4 & 5 were
appointed against the post of Assistant Teacher.
2. Brief facts giving rise to the present writ application is
that on 28.10.2006 an advertisement was published by the
Secretary of the respondent / School inviting applications for
two posts of Graduate Assistant Teacher and one post of Clerk
for appointment. The Managing Committee in its meeting held
on 14.11.2006 appointed the petitioners as Assistant Teacher in
the School in question on temporary basis and subsequently the
Principal of the said School communicated the decision taken in
the meeting for appointment of the petitioners to the Secretary,
Bihar Sanskrit Shiksha Board (hereinafter referred to as the
"Sanskrit Board") vide letter no. 15 dated 14.11.2006 for
approval and further for initiating the process of permanent
appointment.
3. Subsequently, appointment letters were issued to the
petitioners following which both of them submitted their joining
on 17.11.2006. Thereafter, Sanskrit Board vide Memo No. 1580
dated 28.03.2007 communicated its approval for appointment of
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
the petitioners as Assistant Teacher on temporary basis.
4. Upon receiving the approval for initiating the process
of permanent appointment in the School, advertisement was
again published on 10.05.2007 in the daily newspaper "Aaj"
inviting applications for appointment on two posts of Assistant
Teacher and one post of Clerk in the respondent-School. The
Managing Committee of the said School vide its letter no. 5
dated 22.05.2007 communicated to the Secretary of the Sanskrit
Board about the applications received pursuant to the aforesaid
advertisement and requested therein to appoint expert to
overview the interview process schedule to be held on
05.06.2007, following which Secretary of the Sanskrit Board
vide its letter no. 4739 dated 01.06.2007 appointed Sri
Ramendra Sah, Principal, Kaushalya Sanskrit High School,
Mahua, Vaishali as an Expert to overview the interview process.
5. Thereafter, the process for selection of the said
applicants were taken on 05.06.2007 in presence of the Expert
and after interview of the petitioners and others, the Selection
Committee recommended the name of the petitioners for
appointment against two vacant posts of Assistant Teacher. The
recommendation of the Selection Committee was unanimously
accepted by the Managing Committee and it was resolved to
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
seek approval from the Sanskrit Board for their permanent
appointment. The Secretary of the respondent-School sent the
proposal for approval of appointment of the petitioners vide
letter no. 8 dated 07.06.2007. The Secretary of the Sanskrit
Board vide its Office Order No. 5049 dated 02.07.2007 granted
approval for appointment of the petitioners on permanent basis
in the pay scale of Rs. 1400-2500/-. It is the case of the
petitioners that the local politicians whose wards were not
appointed, forced the petitioners not to work, following which
petitioners filed several representations.
6. Learned senior counsel for the petitioners argued that
the procedure regarding appointment of the petitioners was duly
followed by the validly constituted Managing Committee after
following due process of law. During the process of selection Sri
Sarvkant Pathak (Principal) and Sri Kamal Kishore Pathak
were asked by the Expert Committee to leave the selection
process and accordingly they did not participate. Appointment
of the petitioners was approved by the Sanskrit Board and till
the date of filing of the writ application the appointment of the
petitioners was not annulled, nor any appointment was made in
place of the petitioners. Local politicians, whose wards were not
appointed, forced the petitioners not to work and the petitioners
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
effort to meet the Officials and their assurance did not translate
into any positive action. In these circumstances the writ petition
was filed with a prayer to direct the respondents to pay the
salary of the petitioners and also for a direction that the
petitioners be allowed to work against their posts as Assistant
Teachers. After filing of the writ application on 07.03.2013, the
petitioners came to know that the respondent nos. 4 & 5 namely,
Sri Sanjiv Kumar Mishra and Sri Sujit Kumar Suman were
appointed as Assistant Teachers without following the
procedures and without any vacancy.
7. The petitioners filed I.A. No. 6977 of 2013
challenging their appointment and on 20.06.2014 notices were
issued to the respondent nos. 2 & 3 and this Court recorded that
during the pendency of this writ application, any action taken by
the respondent nos. 2 & 3 pursuant to Annexure- 20 shall be
subject to the result of this case.
8. He further argued that on a complaint made by some
teaching and non- teaching employees of the school dated
23.10.2007 regarding irregularity conducted in the appointment
process of the petitioners, an enquiry was conducted by the
District Education Officer, Sitamarhi, who submitted his report
vide letter no. 882 dated 07.06.2008 stating therein that
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
allegation made in the complaint with respect to constitution of
the Managing Committee and decisions taken regarding
appointment of the petitioners appears to be correct. The
petitioners were never given / served the copy of the enquiry
report which was conducted by D.E.O., Sitamarhi behind the
back of the petitioners. The enquiry conducted was an ex-parte
enquiry and report was submitted without giving opportunity of
hearing to the petitioners which is gross violation of the
principle of natural justice and is non est in the eye of law.
9. Termination of the appointment of the petitioners by
the newly formed Managing Committee is in violation of Rule
13 of the Bihar State Non- Government Recognized Sanskrit
School (Upto Madhyama Standard) Teachers Service
Conditions Rules, 2015 which is pari materia to the 1976
Rules. There is no proof of the Sanskrit Board cancelling the
appointment of the petitioners on the basis of the
recommendation made by the newly constituted Managing
Committee dated 08.01.2011 for cancellation of petitioners'
appointment.
10. Learned counsel further submits that on perusal of
resolution of the Managing Committee dated 08.01.2011 it
would be evident that there was no agenda for termination /
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
cancellation of the appointment of the petitioners. The
Managing Committee in violation of the rules and in order to
favour the private respondents cancelled the appointment of the
petitioners which has not been approved by the Sanskrit Board.
11. On the other hand, learned counsel for the private
respondents and official respondents submit that the present writ
application challenging the decision of the Managing
Committee is not maintainable inasmuch as it is settled law that
no writ will lie against the decision of the Managing Committee
of the School. He relies upon the decision of this Court reported
in 1999 (1) PLJR 529 Chandra Nath Thakur & Ors. versus The
Bihar Sanskrit Shiksha Board and Ors. and the Hon'ble
Supreme Court reported in (2019) 7 SCC 513 Trigun Chand
Thakur versus State of Bihar and Others. They further argued
that appointment of the petitioners is a case of favouritism as the
petitioner no. 1 is the brother of an Assistant in the Office of
Sanskrit Board and the petitioner no. 2 / Ajit Kumar Pathak is
the son of the then Headmaster namely Sarvkant Pathak. The
appointment has been made contrary to the provisions of Bihar
State Non-Government Sanskrit High School (Service
Condition) Rules, 1976. It is on the basis of the enquiry report
submitted by D.E.O., Sitamarhi the decision of cancellation of
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
appointment of the petitioners has been taken. Insofar as 2015
Rule is concerned, the same has nothing to do with this case. In
2007 i.e. in the year of appointment 1976 Rule was holding the
field and actions taken under 1976 Rules have only been saved
by 2015 Rule. At the time of appointment of the petitioners the
1976 Rule was prevailing having no statutory force. The writ
application is devoid of merit and is fit to be dismissed.
12. I have heard rival submissions advanced by learned
counsel appearing for the parties.
13. The petitioners were appointed after following the
due process of appointment viz. advertisement, appointment of
expert by the Sanskrit Board for interview and recommendation
of the name of the petitioners by the Selection Committee.
Appointment of the petitioners have been approved by the
Sanskrit Board vide order dated 2nd July 2007. The newly
formed Managing Committee of the School recommended for
cancellation of the petitioners' appointment on the basis of the
report of the D.E.O., Sitamarhi and it is the case of the
petitioners that all these have been done at the behest of the
donor with the help of local politicians to appoint their
favourites after ousting the petitioners. The private respondent
nos. 4 & 5 were appointed.
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
14. The main issue which requires consideration is
whether the present writ application is maintainable in its form
and the procedure as prescribed in the rules for termination of
the services of the petitioners have been followed or not.
15. Insofar as maintainability of the present writ
application is concerned, the respondents have relied upon
Division Bench judgment of this Court passed in 1999 (1) PLJR
529 and the judgment of the Hon'ble Supreme Court reported
rendered in (2019 ) 7 SCC 513.
16. The Division Bench of this Court in Chandra Nath
Thakur Case (Supra) taking note of the Bihar Sanskrit Shiksha
Board Act, 1981 (hereinafter referred to as the "Act") has held
that in absence of any statutory Rule framed by the State
Government, as required under Section 22(2) of the Act, the
Board or the Chairman can not exercise any disciplinary power
to accord approval of the order of dismissal passed by the
Managing Committee against a teacher of the school. Therefore,
for all practical purposes, it has to be held that the Board will
have the administrative control over the affairs of the schools,
except the power of dismissal and termination of the teaching
and non- teaching employees of such schools until a Rule is
framed as required under Section 22(2) of the Act.
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
17. The Division Bench considered the Bihar State Non-
Government Sanskrit High School (Condition of Service) Rules,
1976 which was not having any statutory force and was not
framed under Section 22 of the Act, held that a teacher of a
privately managed school, even though financially aided by the
State Government or the Board, can not maintain a writ petition
against an order of termination from service passed by the
Managing Committee.
18. The Hon'ble Supreme Court in the case of Trigun
Chand Thakur Case (Supra) relying upon Chandra Nath Thakur
Case has held that the Managing Committee of a school is not
"State" within the meaning of Article 12 of the Constitution of
India and the writ is not maintainable.
19. In the present case two rules have been placed before
this Court namely, Bihar State Recognized Non-Government
Sanskrit Schools (Up to Madhyama Standard) Managing
Committee Constitution Rules, 2015 framed under Section 22 of
the Act (hereinafter referred to as the "Managing Committee
Rules, 2015"). The another rule which has been brought to the
notice of this Court is Bihar State Non Government Recognized
Sanskrit School (Up To Madhyama Standard) Teacher Service
Condition Rules, 2015 framed in exercise of the powers
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
conferred under Section 22 of the Act (hereinafter referred to as
the "Service Conditions Rules, 2015").
20. Both these Rules are piece of subordinate legislation
having statutory force. In the Managing Committee Rules, 2015
certain functions and powers have been given to the School
Managing Committee under Rule 7.
21. Rule 7(x) confers power on the Managing Committee
to make appointment of the school headmaster, teachers and
non- teaching staff, to grant leave, to give promotion to the
teachers etc. in the light of Service Conditions Rules, 2015.
22. The Service Conditions Rules, 2015 gives power to
the Managing Committee to take disciplinary action and award
major or minor punishment including dismissal. Rule 13 of the
Service Conditions Rules, 2015 prescribes procedure for
imposing punishment in consonance with the principle of
natural justice.
23. The power to appoint under the Service Conditions
Rules, 2015 and to deal with the service of the employees of the
Sanskrit School by the Managing Committee includes the power
to terminate / dismiss the employees.
24. Rule 17 of the Managing Committee Rules, 2015 and
Rule 16 of the Service Conditions Rules, 2015 are quoted
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
herebelow for ready reference:-
17. Repeal and Savings.--
(1) From the date of commencement of these Rules, all
previous Rules, Resolutions, Orders, and Instructions etc. relating
to Managing Committee are hereby repealed.
(2) Notwithstanding such repeal, any action taken or any
thing done under the previous Rules, Resolutions, Orders,
Instructions prior to commencement of these rules will be
deemed to be taken or done under these rules as at these Rules
come into force on that day on which such action was taken or
such thing was done.
16. Repeal & saving.--
(1) All the previous service condition Rules, Resolution,
orders and instructions are hereby repealed.
(2) Notwithstanding such repeal, anything done or any
action taken under the previous Rules, Resolution, order,
instructions, shall be done or take under these Rules as at these
Rules were come into force on such date when such thing was
done or such action was taken.
25. Upon reading of Rule 17 / Rule 16 of the aforesaid
Rules it appears that these rules have been given retrospectivity
by saying that notwithstanding any thing done or any action
taken under the previous Rules, Resolutions, Orders,
Instructions, shall be deemed to be done or taken under these
Rules as these Rules come into force on such date when such
thing was done or such action was taken. Meaning thereby, even
if it is said that the action against the petitioners were taken
under the the old rules (1976 Rules) by the Managing
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
Committee it will be deemed to have been taken under Service
Conditions Rules, 2015.
26. Even if the termination of the petitioners service were
done in the year 2011 by the Managing Committee the same
shall be deemed to have been done under 2015 Rule by
operation of Rule 16 of the Service Conditions Rules, 2015.
27. The Managing Committee Rules, 2015 confers
powers and functions upon the Managing Committee including
the function regarding the service condition of the teachers. If
the provisions of the Rules are violated by the Managing
Committee, the High Court in exercise of jurisdiction under
Article 226 of the Constitution of India can interfere in the light
of the fact that 2015 Rules are statutory rules. The Managing
Committee created under 2015 Rules with certain functions and
powers, in my opinion, is amenable to writ jurisdiction if any
violation of the Rules is alleged against the Managing
Committee.
28. In the judgments of the Division Bench of this Court
and the Hon'ble Supreme Court the 1976 Rule was under
consideration having no statutory force but in the present case
the Rules under consideration are the statutory Rules framed
under Section 22 of the Act.
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
29. Accordingly, in my opinion, the writ application is
maintainable.
30. The issue regarding validity of the termination of the
petitioners primarily on the ground that as to whether the
procedures prescribed in the Rules in this regard has been
followed or not is being examined now as a second issue.
31. The petitioners services were terminated in 2011. The
1976 Rules prescribe certain procedures to be followed before
removal of the teachers in conformity with the principle of
natural justice. The relevant provisions are mentioned in Rule
22 to 28 of the 1976 Rules.
32. The petitioners' services were terminated on the basis
of enquiry conducted by the District Education Officer,
Sitamarhi, who submitted his report vide letter no. 882 dated
07.06.2008. Copy of the enquiry report along with the show-
cause was not made available to the petitioners. The enquiry
was an ex-parte enquiry conducted behind the back of the
petitioners.
33. The Rules framed under Section 22 of the Act are
statutory rules which casts certain obligations upon the
Managing Committee while dealing with the service conditions
of the teachers.
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
34. Rule 13 of the Service Conditions Rules, 2015 is pari
materia to Rules 22 to 28 of the 1976 Rules and assigns duty
upon the Managing Committee to follow certain procedures
including the principle of natural justice.
35. It has been held above that 2015 Rules have been
given retrospectivity having statutory force. Accordingly, non
conformity of the principle of natural justice as enshrined in the
1976 Rules and 2015 Rules renders the order of termination
invalid.
36. Considering the discussions held hereinabove, the
order terminating the services of the petitioners is set aside.
Consequently, the appointment of the private respondents is also
set aside.
37. The respondents are directed to reinstate the
petitioners forthwith on their respective posts of Assistant
Teacher with 50% of back wages from the date of termination
till the date of reinstatement. If the petitioners have actually
worked prior to their termination, the salary for those periods
shall be paid after verification / proof of their working.
38. With the aforesaid observation and direction, the
application stands allowed to the extent as indicated
hereinabove.
Patna High Court CWJC No.5665 of 2013 dt.08-08-2024
39. There shall be no order as to cost.
(Anil Kumar Sinha, J)
praful/-AFR
AFR/NAFR AFR
CAV DATE 15-07-2024
Uploading Date 08-08-2024
Transmission Date NA
