Nirmala Sinha v. State of Bihar — 1990 DIGILAW 245 (PAT)

JUDGMENT S. B. Sinha, J.- The writ application is directed against an order dated 12.9.1989 passed by the respondent no. 3, whereby and whereunder it was held that respondent no. 6 (Smt. Tunu Mukharjee) was senior to the petitioner. The basic facts of the case are not in dispute. The respondent no. 6 was appointed as a matric untrained teacher in Shiv Narain Marwari Kanya Madhya Vidhyalay (hereinafter referred to as the said 'school') on 12.2.1962. 2. The respondent no. 6 thereafter took short term training of six months and was granted matric trained scale of pay. The respondent no. 6 thereafter was placed in the final selection grade for matric trained teachers with effect from 1.4.1971. The respondent no. 6 completed her I. A. degree in 1975 and became a graduate in 1981. 3. So far as the petitioner is concerned, she was appointed in the year 1971 and at that point of time, she was a graduate. On 10.12.1971, the petitioner passed her B. A. Examination and in 1973 she passed her M. E. D. Examination. 4. It appears from the letter dated 99.1972 as contained in Annexure-l to the writ application that the petitioner was confirmed in the I. A. trained scale with effect from that date. 5. From a perusal of Annexure-B to the counter affidavit filed on behalf of the respondent no. 6, it is evident that whereas the petitioner is getting the scale of pay admissible to a I. A. trained teacher, the respondent no. 6 is getting the scale of pay admissible to a matric trained teacher. 6. It appears that a post of Head Mistress had fallen vacant in the said school and the respondent no. 6 claimed herself to be entitled to the said post. 7. The matter of inter-se seniority by and between the petitioner and the respondent no. 6 was referred to respondent no. 3 who by an order dated 1.3.1988 as contained in Annexure-6 to the writ application, held that the petitioner is senior to respondent no. 6. The respondent no. 6. however, being aggrieved by and d is-satisfied with the said order. filed a writ application in this Court which was marked as CWJC No. 410 of 1988 (R). 8. By an order dated 27.1.1989. a learned single Judge of this Court while allowing the said application remitted the matter back to the respondent no. 6. The respondent no. 6. however, being aggrieved by and d is-satisfied with the said order. filed a writ application in this Court which was marked as CWJC No. 410 of 1988 (R). 8. By an order dated 27.1.1989. a learned single Judge of this Court while allowing the said application remitted the matter back to the respondent no. 3 for recording a fresh order after giving opportunities of hearing to the parties. The impugned order dated 12.9.1989 as contained in Annexure-10 to the writ application has been passed in terms of the aforementioned judgment dated 27.1.1989 passed in CWJC No. 410 of 1988 (R) (Annexure-7). 9. Mr. A. K. Sinha, the learned counsel appearing on behalf of the petitioner took me through the impugned order and submitted that the petitioner was found to be junior to respondent no. 6 and she had been allowed to occupy the post of Head Mistress to the said school only on the ground that she was appointed by the managing committee after 1.1.1971 in respect whereof the managing committee allegedly did not have the jurisdiction. 10. It was further' found by the respondent no. 3 that the petitioner's services have not yet been approved, in accordance with the rules, by the State of Bihar. 11. The learned counsel submitted that on the basis of the aforementioned two reasons only the respondent no. 6 could not have been directed to be allowed to occupy the post of Head Mistress of the said school particularly in view of the fact that the question as to whether the petitioner was validly appointed or not was to be determined only after holding an enquiry in that regard as is evident from Annexure-10 itself. 12. Mr. Sinha, further submitted that in any event as the petitioner was appointed as far back in the year 1971, the question of her appointment being declared illegal, at this stage, does not arise. The learned counsel, in this connection has relied upon a decision of this Court in Roshan Lal & ors. vs. International Airport Authority of India & ors., reported in AIR 1981 SC 597 , in Narender Chadba & ors. vs. Union of India & ors., reported in AIR 1986 SC 638 and in Yogendra Lal vs. Bihar State Electricity Board & ors., reported in 1987 BLT 340. 13. Mr. vs. International Airport Authority of India & ors., reported in AIR 1981 SC 597 , in Narender Chadba & ors. vs. Union of India & ors., reported in AIR 1986 SC 638 and in Yogendra Lal vs. Bihar State Electricity Board & ors., reported in 1987 BLT 340. 13. Mr. Kameshwar Prasad, the learned counsel appearing on behalf of the respondent no. 5 supported the case of the petitioner and submitted that in the year 1971 the managing committee of the said school had the jurisdiction to appoint the petitioner as an assistant teacher at that time. 14. Mr. M. M. Banerjee, the learned counsel appearing on behalf of the respondent no. 6, on the other hand, submitted that by reason of circular letter dated 26.5.1975, the State of Bihar took a policy decision that any appointment of untrained teacher made after 1.1.1971 should not be given effect to and all such appointments should be terminated. 15. My attention has also been drawn to another notification dated 31.12.1982, from a perusal whereof, it appears that the State had fixed the minimum qualification of a teacher in a middle school as matric trained. In that letter, inter alia, it was stated that the State shall not grant approval of the teachers who are appointed after 1.1.1971, The said notification was issued by the State of Bihar in purported exercise of its power conferred upon it under Section 8 of the Bihar Non-Government Elementary School (Control and Management) Act, 1976. 16. In this situation, the main question which requires consideration by this Court is as to whether the appointment of the petitioner in the year 1971 as an untrained teacher was valid or not. 17. It is not disputed that the said school was at all material times was and still is a minority institution. 18. The only contention raised on behalf of the respondents questioning the legality or otherwise of the appointment of the petitioner is based upon the aforementioned notifications issued in the year 1975 and 1982. So far as the notification dated 31.10.1982 is concerned, as indicated hereinbefore, the same was issued by the State of Bihar by exercise of its power conferred upon it under Section 8 of the Bihar Non-Government Elementary School (Control and Management) Act, 1976. 19. So far as the notification dated 31.10.1982 is concerned, as indicated hereinbefore, the same was issued by the State of Bihar by exercise of its power conferred upon it under Section 8 of the Bihar Non-Government Elementary School (Control and Management) Act, 1976. 19. As indicated hereinbefore, the schoo1 is a minority institution and in that view of the matter, the provisions of the said Act cannot be said to have any application whatsoever in relation thereto. So far ail the 1975 Circular is concerned, the same ex-facie does not appear to have any application in respect of the minority institution inasmuch as the State Government had no jurisdiction to direct the termination of the services of such teachers who were appointed after 1.1.1971 in an untrained scale. 20. From a perusal of the aforementioned 1975 Circular, it would appear that the State of Bihar directed that the services of all teachers who were not trained on 1.1.1971, should be terminated even in respect of those who were appointed before 1975. 21. Such a power evidently the State did not have in respect of the schools which were minority institutions. Further the circular letter being merely an administrative order could not have been given retrospective effect. 22. On the basis of the aforementioned circular letter, therefore, it cannot be held that initial appointment of the petitioner was bad in law. 23. This aspect of the matter bas been considered in details by me in Smt. Pratibha Singh & another vs. State of Bihar & ors., reported in 1988 PLJR 646 . 24. In that decision after taking into consideration various division bench decisions of this Court as also the Supreme Court, it was held that the aforesaid 1982 notification could not have been given retrospective effect. The same reasoning would apply also in relation to 1975 circular. 25. Admittedly, the petitioner was given the I. A. trained scale with effect from 10.2.1971 by virtue of a letter dated 9.9.1972 as contained in Annexure-1 to the writ application. 26. Even from the Chart which is contained in Annexure-B to the counter affidavit filed on behalf of the respondent no. 25. Admittedly, the petitioner was given the I. A. trained scale with effect from 10.2.1971 by virtue of a letter dated 9.9.1972 as contained in Annexure-1 to the writ application. 26. Even from the Chart which is contained in Annexure-B to the counter affidavit filed on behalf of the respondent no. 6 which inter alia shows the scale of - pay sanctioned by the State of Bihar to the teachers of the said school, it would be evident that the petitioner had been getting the salary admissible to an I. A. trained teacher whereas the respondent no. 6 bad been getting the scale of pay of a matric trained teacher. It bas not been disputed before me by the counsel for the respondents that the respondent no. 6 thus is under a lower scale of pay than the petitioner and the respondent no. 6 would be entitled to get the I. A. trained scale of pay only on a promotion to that post. 27. In this situation, in my opinion, the question of the petitioner being junior to the respondent no. 6 does not arise. 28. In view of my finding aforementioned, it must be held that impugned order dated 12.9.1989 passed by the respondent no. 3 as contained in Annexure-10 to the writ application cannot be sustained. 29. In the result, this application is allowed and the impugned order as contained in Annexure-10 is quashed. However, in the facts and circumstances of this case, there will be no order as to costs.