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2003 DIGILAW 111 (PAT)

Sarla Rohilla v. State Of Bihar

2003-01-27

NAGENDRA RAI, R.S.GARG

body2003
Judgment 1. Heard (earned counsel for the appellant, State as well as for the Vidyalaya Seva Board. 2. This appeal is directed against the order dated 14.3.2002 passed by the learned single Judge by which he has held that the appellant would be permitted to work as Assistant Teacher in St. M.G. High School (a minority School) Boring Canal Road, Patna (hereinafter referred to as the School), but she would be entitled to salary only after her appointment is approved by the Vidyalaya Seva Board upon her becoming eligible for such appointment in terms of the direction given by his Lordship. 3. The writ petitioner-appellant filed writ application for a direction to the respondents to pay arrears of salary since April, 1999 as well as current salary and to quash the order dated 19.11.1999 of the Vidyalaya Seva Board seeking certain clarification from the District Education Officer in the matter of approval of the appellants appointment on the post of Assistant Teacher in the said School. 4. Admitted fact is that on 29.6.1983 an advertisement was published by the Secretary of the School inviting applications from the Trained Graduates for appointment of teachers in various subjects including Sanskrit, (n the advertisement it was not stated that for appointment on the post of teacher in Sanskrit subject, the candidates should be Honours Graduate in Sanskrit. The appellant along with others applied for appointment on the post of teacher in Sanskrit subject. She was selected and appointment letter was issued on 18.7.1983 and she joined her post on 1.8.1983. On 29.10.1985, approval to the appointment of the appellant was granted by the District Education Officer. It appears that subsequently in the year 1998 the Special Director, Secondary Education directed all District Education officers to obtain approval/concurrence of the Vidyalaya Seva Board with regard to the appointments in non-government minority secondary schools. Thereafter, it appears that enquiry in the case of the petitioner was also made and it was found that she did not possess requisite qualifications i.e. Trained Graduate with Honours in Sanskrit. Thereafter her salary was stopped which has been challenged by her as stated above. 5. The case of the respondents, on the other hand, is that in terms of Rule 4.3 of the Bihar Non-Government Secondary Schools (Service Conditions) Rules, 1983 the appellant did not possess requisite qualifications. Thereafter her salary was stopped which has been challenged by her as stated above. 5. The case of the respondents, on the other hand, is that in terms of Rule 4.3 of the Bihar Non-Government Secondary Schools (Service Conditions) Rules, 1983 the appellant did not possess requisite qualifications. According to the said rule, for appointment of Assistant Teacher in oriental subjects, namely, Sanskrit, Persian and Arabic, the candidate is required to possess Degree/Diploma in the concerned subject at the Post Graduate/Honours level by any University or Board recognised by the State Government, besides training. As the appellant is neither Post Graduate in Sanskrit nor having Honours at Graduate level, she is not eligible for appointment as teacher. 6. Learned counsel for the appellant rightly submitted that the said rule has no application as the appointment of the appellant was made prior to that rule, but that does not make any difference as even prior to the said rule, the Government prescribed same qualification for the post of Assistant Teacher in the Secondary Schools. During the course of hearing, learned counsel for the appellant submitted that the appellant had passed B.A. from Uttar Pradesh and Sanskrit was one of the subjects and there is no Honours course at the Graduate level in Uttar Pradesh. He further submitted that the advertisement which was issued for appointment of Assistant Teachers did not require that the candidate should be Honours in Sanskrit. It only required Graduation and Training and the appellant having fulfilled the aforesaid criteria was appointed and has continued for 19 years and at this stage she cannot be thrown away on the ground of lack of qualification which was not even mentioned in the advertisement. 7. According to the relevant provisions, Post Graduate in the subject or Honours in the subject at Graduate level was basic requirement apart from training for appointment on the post of Assistant Teacher. Admittedly, the appellant did not possess the same but the fact remains that the advertisement was silent about the said fact and appointment was made in 1983 and the appellant has continued on the said post for about 19 years. Admittedly, the appellant did not possess the same but the fact remains that the advertisement was silent about the said fact and appointment was made in 1983 and the appellant has continued on the said post for about 19 years. We do not find any fault in the view taken by the Vidyalaya Seva Board that Honours in Sanskrit subject is required for appointment on the post of Assistant Teacher but the question for consideration is as to whether on such ground after 19 years the appellant should be thrown away from the job. 8. The Apex Court in the case of Miss Shainda Hasan V/s. State of Uttar Pradesh, AIR 1990 S.C. 1381 , while observing that the selection was invalid on account of relaxation of qualification by the Committee which was not empowered to do the same, held that asking the selected candidate to leave the job after sixteen years would be doing injustice and accordingly directed the authority to grant approval to the appointment of the appellant in the Apex Court as Principal of the College with effect from the date she was holding that post. 9. Again in the case of Dr. M.S. Mudhol V/s. S.D. Halegkar, (1993) 3 S.C.C. 591 , the Apex Court having noticed that the candidate was not having requisite qualification for appointment did not interfere with the appointment on the ground that the candidate was holding the post for the last 12 years and held that it would be inadvisable to disturb him from the post at the late stage particularly when he was not at fault when his selection was made. He had not at that time projected his qualifications other than what he possessed. If the selection committee for some reason or the other had thought it fit to choose him for the post, it would be inequitous to make him suffer for the same now. Illegality was committed by the selection committee and not by the candidate. 10. The case of the present appellant stands on the better footing than those referred to above. In this case, the appellant applied in terms of the advertisement and then she was selected and continued for 19 years. At this stage asking her to leave the Institution on the ground of aforesaid infirmity with regard to qualification will cause injustice to her. In this case, the appellant applied in terms of the advertisement and then she was selected and continued for 19 years. At this stage asking her to leave the Institution on the ground of aforesaid infirmity with regard to qualification will cause injustice to her. Accordingly, we are disposing of this appeal with a direction to the Vidyalaya Seva Board to grant approval to the appellants appointment and after the approval, the appellant should be paid her salary for the due period. 11. In the result, this appeal is allowed with the aforesaid direction.