JUDGMENT: 1. The present writ petition has been preferred against the order, dated 20th August, 2001 (Annexure2 to the memo of the present petition), passed by the Secretary, Human Resources Development Department, State of Jharkhand, Ranchi whereby, it has been directed by the respondents that the services of the present petitioners are to be terminated by the Management School because they are appointed illegally as they were untrained, and secondly, for the reason that when they were appointed/reappointed (upon getting the B.Ed qualification) their names, were not included in the panel prepared by the District Education Establishment Committee. For these two reasons, a direction was given to the Management School to terminate the services of the present petitioners and the petitioners are challenging this order, passed by the respondent State authorities. 2. The issue raised in this writ petition to be adjudicated are as under: Whether the respondent State authorities has power, jurisdiction and authority, to give direction, by subordinate Legislation (i.e. by a Circular, dated 31st December, 1982, enacted under Section 8 of the Bihar Non Government Elementary School (taking over of Control) Act, 1976 and that too making it effective from a retrospective date i.e. from 1st January, 1971) to the Management, (which is alleged to be a minority school), to terminate the services of teachers, on the ground that when these Teachers were appointed in the year 19781979, they were not trained Teachers as well as they were appointed against unsanctioned post as well as for the reason that their names were not reflected in the list of candidates prepared by the District Education Establishment Committee. 3. Factual Matrix: Petitioner No. 1 was appointed as a teacher on 11th February, 1979 in Kabiria Urdu Middle School, Zakir Nagar, Mango, Jamshedpur which was granted recognition by the Government in the year 196869, which was extended from time to time and thereafter, it was granted permanent recognition in the year 1972. When the petitioner no. 1 was appointed in the year 1979, he was a graduate in Arts faculty and he cleared or passed Teachers' Training Examination (B.Ed.) in the year 1982. The services of the petitioner no. 1 was approved by the Government in the year 1983 in Matriculation Trained Scale as he has acquired B.Ed. Degree in the year 1982 and in the year 1989 services of the petitioner no. 1 was approved in I.A. Trained scale. The services of the petitioner no. 1 was approved by the Government in the year 1983 in Matriculation Trained Scale as he has acquired B.Ed. Degree in the year 1982 and in the year 1989 services of the petitioner no. 1 was approved in I.A. Trained scale. Petitioner no. 2 was appointed as a teacher in the aforesaid school on March, 1979 and he cleared his teachers' training examination (B.Ed. ) In the year 1988 and the services of petitioner no. 2 was approved with effect from 1st April, 1989. Petitioner no. 3 was appointed as a teacher with effect from 8TH November, 1979 in the aforesaid school and he has cleared his Teachers Training examination (B.Ed.) in the year 1987 and he was approved in the services in the Intermediate Arts Trained Scale with effect from 1st April, 1989. Petitioner no. 4 was appointed on 1st August, 1990 and from the very beginning petitioner no. 4 is a Graduate and has cleared her Teachers' Training Examination (B.Ed.) and therefore, her services were also approved by the competent authority with effect from the very same date, i.e. from the date of her appointment, i.e. with effect from 1st August, 1990. All these four teachers have served in the aforesaid school honestly, diligently, sincerely and to the satisfaction of the respondents and neither any notice have been given to them for their work being unsatisfactory nor regarding any other misconduct. Petitioners were also paid salary by the Government up to December, 1996 because the school in which they were serving was a minority aided school. Thereafter, the government stopped paying the salary and hence a writ petition, being C.W.J.C. No. 551 of 2001 was preferred by the present petitioners before this Court for getting salary from January 1997 onwards. This writ petition was decided by this Court, vide order dated 8th February, 2001, in which the Secretary, Education Department, Govt. of Jharkhand was directed to decide the claim of the petitioners in accordance with law and to pass a speaking order. The said order is at annexure 1 to the memo of the petition. In pursuance of the aforesaid direction, the order, dated 20th August, 2001, was passed by the Secretary, Education Department, Government of Jharkhand, whereby a direction was given by the Government to the Management of the Kabiria Urdu Middle School to terminate the services of the petitioners. The said order is at annexure 1 to the memo of the petition. In pursuance of the aforesaid direction, the order, dated 20th August, 2001, was passed by the Secretary, Education Department, Government of Jharkhand, whereby a direction was given by the Government to the Management of the Kabiria Urdu Middle School to terminate the services of the petitioners. Thus, the petitioners, who preferred the petition to get the salary, got a direction from respondent no. 2 for termination of their services and hence, the order, dated th August, 2001, is under challenge by way of this writ petition. 4. Arguments canvassed on behalf of the petitioners: As the petitioners were working as teachers since 1978-1979 in the minority school, the direction given by the respondents in the impugned order is illegal and violative of Article 30 of the Constitution of India. The circular, dated 31st December, 1982, bearing instruction no. 2501, relied upon while passing the impugned order, is absolutely illegal and could not have been issued under section 8 of the Bihar NonGovt. Elementary School (Taking over of Control) Act, 1976 (for the sake brevity “The Act, 1976”). Assuming without admitting that there is a power with the State Government under section 8 of The Act, 1976, it can not be applied with retrospective effect because the petitioners were appointed in the year 197879 and Petitioner no. 4 was appointed and approved in the year 1990, she being already a graduate and B.Ed. Degree holder. Section 8 of the Act, 1976 is empowering the government to remove the difficulties. Thus, it is a Henry VIII clause and therefore, the removal of difficulties clause can not be utilized as a substitute for rule making power as has been held in the decision reported in AIR, 1988 Patna, 9 (FB). In the impugned order a departmental instruction dated 31st December, 1982 has been relied upon and looking to this circular it appears that the same has been enacted under section 8 of the Act, 1976 and therefore, under Section 8 of the Act, 1976, the State of Government has no power, jurisdiction and authority to issue the circular dated 31st December, 1982 bearing Instruction No. 2501. Similar is the fate of another circular in order dated 4th March, 1993 bearing Govt. resolution No. 709, which is relied upon by the Government. Similar is the fate of another circular in order dated 4th March, 1993 bearing Govt. resolution No. 709, which is relied upon by the Government. Henry VIII clause and the rule making power are quite different and one cannot substitute the other. Counsel for the petitioners has also pointed out that the Govt. has already approved the Matric Untrained Scale as well as Intermediate Untrained Scale etc. meaning thereby that if any teacher is appointed without having any B.Ed. Degree or diploma in teacher's training, then he or she will be entitled to untrained scale and no sooner a teacher acquires qualification by clearing Teachers' Training Examination, he or she will be entitled to trained scale, which may be a matric trained scale or B.Sc./B.A. Trained Scale. Thus, it implies that initially there can be a legal and valid appointment of a teacher even though he was not a trained teacher. In the facts of the present case, it is submitted by the counsel for the petitioners that all the petitioners have acquired B.Ed. Degree within a couple of years and they are not seeking even any salary etc. for their initial period in service in this writ petition. The only reason for passing the impugned order appears to be that when the petitioners have been appointed in the year 197879, they were untrained. This reason is not a valid reason in the eye of law. This alleged circular of 31st December, 1982 can not be given retrospective effect because petitioners were already appointed in the year 197879. It is further submitted by the counsel for the petitioners that looking to the impugned order, the second reason given is that only out of the list of candidates, the Govt. has prepared, teachers could have been appointed. This is, primafacie dehors the law and the provisions of the Act, 1976. This arbitrariness is reduced in writing by way of circular dated 4th March, 1993 bearing Circular No. 709. This circular is equally bad as the circular dated 31st December, 1982 because this second circular is also issued under section 8 of the Act 1976 as Section 8 vests power in the Government to remove the difficulties, like the Henry VIII clause. Under this clause no detailed rule can be framed by the government and that too with retrospective effect. Under this clause no detailed rule can be framed by the government and that too with retrospective effect. It is further submitted by the counsel for the petitioners that basically the circular dated 4th March, 1993 is a relaxation in the process of selection of teachers, which was given in the circular dated 31st December, 1982. Earlier circular was also issued under the Henry VIII clause. Thus, power to remove the difficulties has been used as power to make the rules. In fact, section 7 of the Act, 1976 empowers the Govt. to make the rules and after enacting the rules, it shall be laid before the House of the State Legislature as soon as possible, while it is in session, for a period of 14 days and in case it is before expiry of the session, this type of rules should be laid before the floor of the house immediately when the session of the House is going on. To avoid this type of process, State Government has adopted a short cut route and has drafted out a circular dated st December, 1982 bearing instruction no. 2501 (which is at Annexure 10 to the memo of this petition). This is impermissible in the eye of law. Counsel for the petitioners submitted that same type of circulars were issued in past also. They are four in number, invoking the powers vested in the government under section 8 of the Act, 1976. All the earlier four circulars were challenged before the Hon'ble Patna High Court. The matter was referred to a Full Bench and ultimately, all these four circulars, which were issued in exercise of power under section 8 of the Act, 1976 (which is like Henry VIII clause) were quashed and set aside in the case of Krishnadeo Misra Vs State of Bihar and others [AIR 1988 Patna 9 (F.B.)]. Counsel for the petitioners has heavily relied upon this decision and is also relying upon the following decisions. I) 1988 PLJR 646 ii) 1992 (2) PLJR 512 iii) (1998) 6 SCC 674 and iv) (2007) 1 SCC 386 , especially paragraph no. 19 thereof, in which general principals relating to establishment and administration of a Educational institutions by the minorities have been summarized to the effect that minority school management has a right to constitute its own governing body. 19 thereof, in which general principals relating to establishment and administration of a Educational institutions by the minorities have been summarized to the effect that minority school management has a right to constitute its own governing body. Likewise they have their own right to chose the teaching staff, teachers, lecturers/principals as well as their non teaching staff and such other rights, i.e. to admit the students etc. Counsel for the petitioners submitted that the petitioners worked in aided minority educational institute and therefore, there is no need to select a teacher from the socalled panel of teachers prepared by the government. Such type of restriction is violative of Article 30 (1) of the Constitution of India. Thus, it is submitted by the counsel for the petitioners that the petitioners, who were working since 197879, were paid salary also and after being approved, they were paid salary regularly by the Govt. They were also given Matric Trained scale as well as intermediate Arts Trained Scale. The petitioners have been paid even the benefits of 5th Pay revision with effect from 13th January, 1996 (as per annexure 9 to the memo of the petition) and from January 1997 the respondents stopped paying salary and therefore, C.W.J.C. No. 511 of 2001 was instituted, in which a direction was given to consider the case of the petitioners in accordance with law and thereafter, the impugned order has been passed for termination of the services of the petitioners. This impugned order is based upon illegal circulars and even if this circular, dated 31st December, 1982 is legal, the same is not applicable to the petitioners because the petitioners were appointed much earlier in point of time and just for the purposes of terminating the services of the petitioners, an executive instruction can not be given retrospective effect unless the Act permits. Looking to the provisions of the Act 1976, it appears that the power under section 8 of the Act, which empowers the Government only to remove the difficulty, has been exercised for issuing circular dated 31st December, 1982. From that point of view also the circular is not binding upon the petitioners. Counsel for the petitioners also relied upon a decision reported in 1988 PLJR 646 paragraph 52 onwards and it has been held in paragraph 62 thereof that when a person is validly appointed, he is legally entitled to receive the salary. From that point of view also the circular is not binding upon the petitioners. Counsel for the petitioners also relied upon a decision reported in 1988 PLJR 646 paragraph 52 onwards and it has been held in paragraph 62 thereof that when a person is validly appointed, he is legally entitled to receive the salary. Such a right to receive salary tantamount to right to hold property and this is falling within the Article 300A of the Constitution of India and therefore executive instruction given by way of the circular dated 31st December, 1982, assuming without admitting that it is issued under article 162 of the Constitution of India (in fact it is issued under section 8 of the Act, 1976, which is absolute use of powers by the State Government), is always subject to Article 300A of the Constitution of India and therefore, the accrued or vested right in the petitioners under Article 300A can not be taken away with retrospective effect because as per the circular, those teachers, who were appointed on 1st January, 1971, who were untrained, have no right to continue in their services (as per paragraph 10 of the impugned order at annexure 2 to the memo of the petition). It is submitted by the counsel for the petitioners that this logic is itself illegal because executive or subordinate legislation can not be given retrospective effect, except where the specific powers should be conferred under the statute and the provisions of the Act, 1976. No such powers have been conferred upon the respondents to issue executive instructions and that too under section 8 of the Act, 1976, which is like Henry VIII clause with retrospective effect and hence also the impugned order at annexure 2 deserves to be quashed and set aside. It is further submitted by the counsel for the petitioners that as stay has been granted by this Court, petitioners are working as teachers, but, the respondents are not even paying the salary. 5. Arguments canvassed on behalf of respondent State.: Counsel for the State submitted that the petitioners' appointment was illegal and hence a direction has been given by the impugned order, dated 20th August, 2001 (annexure 2) to terminate their services. Those, who were appointed illegally, have no right to continue in their services. 5. Arguments canvassed on behalf of respondent State.: Counsel for the State submitted that the petitioners' appointment was illegal and hence a direction has been given by the impugned order, dated 20th August, 2001 (annexure 2) to terminate their services. Those, who were appointed illegally, have no right to continue in their services. As per circular dated 31st December, 1982, which is at annexure 10 to the memo of the petition, the person who has not obtained Teachers Training certificate or B.Ed. degree is illegally appointed as a teacher. Admittedly, the petitioner no.1, 2 and 3 were not B.Ed. Degree holders and therefore, their appointments were illegal as on the date of the appointment. It is further submitted by the counsel for the State that as per circular dated 31st December, 1982, the respondent no. 6School ought to have been chosen a teacher from a panel prepared by the District Education Establishment Committee. Petitioners were not found in the list/panel so prepared by respondents and hence their appointment is illegal and therefore, rightly a direction has been given by the Secretary, Human Resources Development department by the impugned order to respondent no. 6 to terminate the services of the petitioners. Counsel for the State has further submitted that the petitioners were not appointed against the sanctioned strength and therefore also their services could not have been continued by respondent no. 6 and hence the direction to terminate their services is absolutely just, proper, correct and legal. Counsel for the State has further submitted that respondent State has never declared Kabiria Urdu Middle School, Zakir Nagar, Mango, Jamshedpur as a minority school and therefore, this school can not enjoy the immunities, which are attached with a minority school unless it is so declared by the Government and hence the arguments canvassed by the counsel for the petitioners under Article 30 of the Constitution of India has no applicability in the facts of the present case and hence the petition deserves to be dismissed. 6. 6. Having heard counsel for both sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by the respondent State authorities dated 20th August, 2001 at Annexure 2 to the memo of the petition mainly on the following facts, reasons and judicial pronouncements : (I) From the facts of the case, it appears that the school in question i.e. Kabiria Urdu Middle School, Mango, Jamshedpur was granted recognition in the year 196869 which was extended time to time and was granted permanent recognition in the year 1972. Petitioner No.1 was appointed as a teacher on 11th February, 1979 whose services were approved by the Government, in I.A. Trained scale in the year 1989 as the petitioner no.1 was Graduate in Arts faculty and passed Teachers Training Examination (B. Ed) in the year 1982. Similarly other petitioners were also approved in the services in the year 1989. Petitioner No.4 2as appointed on 1st August, 1990 and from the very beginning her services were approved by the competent authority. Thus, petitioners have worked as teachers from 1979 and they were getting salary paid by the respondents Government upto December, 1996. (II) It further appears from the facts of the case that from January, 1997, these petitioners were not paid salary and therefore, a writ petition being C.W.J.C. No.551 of 2001 was instituted and it was ordered by this Court dated 8th February, 2001 whereby the Secretary, Education Department was directed to decide the claim of the petitioners in accordance with law and to pass a speaking order. Respondents Government passed an order on 20th August, 2001whereby direction was given to the management of the Kabiria Urdu Middle School to terminate the services of the petitioners mainly for the reason that in pursuance of a circular issued by the Government bearing No.2509 dated 31st December, 1982 has given certain executive instructions which were made effective from 01.1.1971 that whenever a teacher is to be appointed in the school, it must be appointed from the panel of teachers prepared by the District Education Establishment Committee and the secondly for the reason that as per the aforesaid circular, which is made effective from 01.1.1971 that unless a candidate has obtained teachers training examination certificate, he will not be eligible for the appointment as a teacher and it is mentioned in the impugned order dated 20th August, 2001 (annexure2 to the memo of the petition) that as the petitioners have not fulfilled these two conditions, therefore, their services were illegal and hence, liable to be terminated. Thus, the bone of contention appears to be applicability of the circular issued by the respondents State bearing No. 2509 dated 31st December, 1982. (III) To examine closely the applicability of the aforesaid circular dated 31st December, 1982, if the preamble of the said circular is the same which is at annexure10 to the memo of petition, it appears the same has been issued under Section 8 of the Bihar Non Governmental Elementary Schools (Taking over of Control) Act, 1976 (herein after to be referred to as 'the Act of 1976' for the sake of brevity). Section 8 of the Act of 1976 reads as under: “8. Power to remove difficulties if any difficulty arises in giving effect to the provisions of this Act, the State Government may take such action or pass such order as appears to it necessary for the purposes of removing the difficulty.” (Emphasis supplied) (IV) Thus, the aforesaid Section empowers the government to pass such order as appears to be necessary for the purposes of removing the difficulty. Thus, whenever a new statute is enacted, there might be unforeseen difficulties in its actual and practical application and to remove such type of difficulties, Section 8 has been carved out in the statute. Only in such an eventuality, Section 8 is to be invoked. Thus, whenever a new statute is enacted, there might be unforeseen difficulties in its actual and practical application and to remove such type of difficulties, Section 8 has been carved out in the statute. Only in such an eventuality, Section 8 is to be invoked. But such a provision is not made as a cloak or a camouflage for colourable exercise of power for making statute, rules for which altogether different sections have been enacted and different procedures have been prescribed. Section 7 of the Act 1976 reads as under: “7. Power to make rules. (i) The State Government may make rules not inconsistent with this Act for carrying out the purposes of this Act. (ii) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before expiry of the session immediately following both the Houses agree in making any modifications in the rule or both the Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.” (Emphasis supplied) (V) It has been held by the Hon'ble Supreme Court in Madeva Upendra Senai Vs Union of India reported in AIR 1975 S.C. 797 in paragraphs 45 and 46 as under: “45. For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a “removal of difficulty clause” and the power conferred by it on the Government. 46. To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexities. 46. To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexities. Under conditions of extreme pressure, with heavy demands on the time of the legislature and the endurance and skill of the draftsman, it is well nigh impossible to foresee all the circumstances to deal with which statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law. This is particularly true when Parliament undertakes legislation which gives a new dimension to socioeconomic activities of the State or extends the existing Indian laws to new territories or areas freshly merged in the Union of India in order to obviate the necessity of approaching the legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time consuming amendatory process, the legislature sometimes thinks it expedient to invest the executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective, without touching its substance. That is why the “removal of difficulty clause” once found upon and nicknamed as “Henry VII Clause” scornful commemoration of the absolutist ways in which that English King got the “difficulties” in enforcing his autocratic will removed through the instrumentality of a servile Parliament, now finds acceptance as a practical necessity, in several Indian statutes of post independence era.” (Emphasis supplied) (VI) Thus, it has been held by the Hon'ble Supreme Court that removal of the difficulty clause should be utilised only for the purpose of removal of the difficulties and it cannot partake the power of making the rules under Section 7 of the Act, 1976. Henry VIII clause cannot be used as a rule making power. This State has been bifurcated from the erstwhile State of Bihar from 15th November, 2000, and till today no rule has been framed under Section 7 of the Act, 1976. Every time, shortcut method has been adopted by the State authorities. The State of Jharkhand has its own Law Commission. It appears that the State authorities are not properly using its Law Commission for drafting of the new rules to be enacted under Section 7 of the Act. Every time, shortcut method has been adopted by the State authorities. The State of Jharkhand has its own Law Commission. It appears that the State authorities are not properly using its Law Commission for drafting of the new rules to be enacted under Section 7 of the Act. It is now high time for the State of Jharkhand to have its own rules to be framed under Section 7 of the Act of 1976. (VII) In fact, as per the decision rendered by the Full Bench of the Hon'ble High Court of Judicature at Patna in Krishnadeo Mishra Vs. State of Bihar and others reported in AIR 1988 Patna 9 (F.B.). Four similar types of circulars under Section 8 of the Act of 1976 have been quashed and set aside only on the ground that Section 8 of the Act of 1976 empowers to remove difficulties which cannot be used as a power to make the rules. Section 8 is like Henry VIII clause which is to be utilized for altogether different purposes as stated herein above. Certain contingencies might be unforeseen when the statute is enacted. Only those type of eventualities can be resolved by Henry VIII clause, but the rule making power is altogether different which is envisaged under Section 7 of the Act of 1976. If the impugned circular bearing no.2501 dated 31st December, 1982 is looked closely, it gives even measurement of the classrooms. In Clause 2(iii)(a) even the area of the land, etc has also been given for the establishment of the primary as well as the middle school. There are provisions for library, etc also in the aforesaid circular. All these could not have been issued under Section 8 of the Act of 1976. (VIII)Assuming without admitting that this has not been issued under Section 8 of the Act of 1976, but they are executive instructions issued under Article 162 of the Constitution of India, then also the same is not applicable to the present petitioners mainly for the reason that whenever any executive instruction is issued, unless they are issued under Article 309 of the Constitution of India, it cannot be given a retrospective effect. Only under the proviso of Article 309 of the Constitution of India, if the rules are enacted then only retrospective effect can be given. Only under the proviso of Article 309 of the Constitution of India, if the rules are enacted then only retrospective effect can be given. There is nothing to show that before issuing the circular in question which is dated 31st December, 1982, all these requirements of making a rule in terms of proviso to Article 309 of the Constitution of India were satisfied. (IX) It has been held by the Hon'ble Patna in Smt. Pratibha Singh & anr Vs. State of Bihar & Others reported in 1988 PLJR 646 in paragraphs 56 and 57 as under: “56. It is well known that a rule may operate retrospectively only if the same issued in terms of proviso to Article 309 of the Constitution of India. There is nothing to show that before issuing the circular in question all the requirements for making a rule in terms of proviso to Article 309 of the Constitution of India were satisfied. It has been noticed hereinbefore that the said rule could not even have been made under section 8 of the 1976 Act, but can at best be treated as an executive instruction. It is well known that such executive instruction framed by the State of Bihar in exercise of its power conferred upon it under Article 162 of the Constitution of India cannot be given a retrospective effect. 57. Further, it is also a well settled principle of law that normally a subordinate legislation operates prospectively unless power is conferred upon the rule making authority by reason of the provisions of the statute itself to frame a rule with retrospective effect. Reference in this connection may be made to Life Insurance corporation of India vs. Escorts Ltd. And others (1986 Vol.1. S.C.C. 264) It is also well known that terms and conditions of service cannot be altered with retrospective effect. Reference in this connection may be made to T.R. Kapur and others vs. State of Haryana and others (1986 Supplementary S.C.C. 584) , Ex Major N.C. Singhal vs. Director General Armed Forces Medical Services, new Delhi and another (A.I.R. 1972 S.C. 628), Union of India and others vs M. Ravi Varma and others (1972 Vol. 1 S.C.C. 379) and Shyam Dayal Panday vs. The State of Bihar and others (1976 Vol. 1 S.L.R. 407). 1 S.C.C. 379) and Shyam Dayal Panday vs. The State of Bihar and others (1976 Vol. 1 S.L.R. 407). (emphasis supplied) (X) In view of the aforesaid decision, circular No.2509 dated 31st December, 2002 which has been given retrospective effect from 01.1.1971 is absolutely arbitrary, illegal and dehors the power of State authorities. (XI) In the facts of the present case, all the petitioners i.e. petitioner nos. 1 to 3 were appointed in the year 1979; their services were confirmed as stated herein above; they were also paid salary up to December, 1996 and thereafter upto September, 2001 by the State Government. The circular dated 31st December, 1982 is issued after the appointment of petitioner nos.1 to 3. (XII) It further appears looking to the impugned order that as the petitioners were not appointed from the panel of teachers prepared by District Education Establishment Committee and therefore, their appointment is illegal. This contention of the State is not accepted by the Court mainly for the reason that the circular cannot be given effect to from 01.1.1971. (XIII) One more reason has been given in the impugned order that when petitioner Nos.1 to 3 were appointed, they were not trained teachers. This contention of the State is also not accepted by the Court mainly for the reason that there is circular issued by respondent State on May, 1980 bearing no.1167 which empowers the appointment of a teacher who is untrained and he will be entitled to scale of untrained teacher. Untrained teachers' scale was in existence at the relevant time. Thus, the Government itself recognized the services of the untrained teachers by granting them scale of “Untrained teacher”. It has been held by the Hon'ble Patna High Court reported in the case of Smt. Pratibha Singh & anr Vs. State of Bihar & Others reported in 1988 PLJR 646 in paragraph 52(A) as under: “52A. Even from a letter dated 2nd May, 1980 being no.1167 issued by Sri Narendra Pal Singh, Special Secretary of the State of Bihar (Department of Education) to the Director (Elementary Education) Bihar, it appears that the State Government itself directed that all the trained teachers shall be paid salary in the scale of pay admissible to a matric trained teacher but those teachers, who were untrained would receive a salary admissible to a matric untrained teacher unless they obtain requisite training therefore. The said letter has been issued in view of the Government order bearing no. 104 dated 23.1.1980 purported to have been issued under section 3 (4) (a) read with section 8 of the 1976 Act. Evidently, therefore, the Government itself recognised the services of the untrained teachers.” (XIV) One more reason has been given in the impugned order dated 20th January, 2011 at annexure2 to the memo of the petition that as the petitioners were appointed on unsanctioned post, their appointment was illegal. This contention is also not accepted by this Court mainly for the reason that in the very same impugned order, it has been stated that subsequently there was reappointment of the petitioners on the sanctioned post and thereafter they have been confirmed in the services by the respondents Government itself. Petitioner No.1 was confirmed in the services or was approved in the services in 1989. Similarly the services of the petitioner no.2 was approved w.e.f. 1st April, 1989 and the same is the case with petitioner no.3. So far as petitioner no.4 is concerned, she was appointed on 1st August, 1990 and from the very beginning, she was a Graduate and has cleared teachers training examination (B.Ed) and her services were also approved by the respondents State authorities from the date of her appointment i.e. w.e.f 1st August, 1990. All these teachers are legally competent and eligible to be appointed as teachers at the Primary Schools. (XV) Moreover, right to get salary comes within the ambit of Article 300A of the Constitution of India. Once such right is accrued, it cannot be taken away even by rule framed under Article 309 of the Constitution of India by giving retrospective effect. It has been held by this Hon'ble Patna High Court in Smt. Pratibha Singh & anr Vs. State of Bihar & Others reported in 1988 PLJR, 646 in paragraphs 58, 62, 63 as under: “58. It is further well settled that a vested right cannot be taken away even by a rule framed under Article 309 of the Constitution of India by giving a retrospective effect thereto inasmuch as by such retrospective amendments the vested rights of an employee cannot be taken away. Such rule must also be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution of India. 62. Further, when a person is validly appointed he is entitled to receive salary. Such rule must also be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution of India. 62. Further, when a person is validly appointed he is entitled to receive salary. Such right to receive salary amounts to right to hold property. Such a right of property fall within Article 300A of the Constitution and as such the State Government while issuing an executive flat cannot deprive a person of his right to hold property. 63. Article 162 of the Constitution is subject to other provisions of the Constitution. It is, therefore, necessary also subject to Article 300A of the Constitution. Reference in this connection may be made to M/s. Bishambhar Dayal Chandra Mohan Vs. State of H.P. And others (A.I.R. 1982 S.C.33). In R.N. Najundappa Vs. T. Thimmiah and another (A.I.R. 1972 S.C. 1767 = 1972 (2) S.C.R. 799 ) it has been held that if an appointment is illegal and unconstitutional the same cannot be regularised by issuing an instrument under Article 162 of the Constitution of India. If an illegal appointment cannot be validated by an executive instruction, there cannot be any doubt that a legal appointment cannot be invalidated thereby.” (Emphasis supplied) (XVI) It has further been held in the aforesaid decision in paragraph 3 as under: “3. The various authorities including the Headmaster of the said school and the District Superintendent of Education recommended that the services of the petitioners be regularised but allegedly the respondents refused to do so.” (emphasis supplied) (XVII) It has been held by Hon'ble Patna High Court in 1982 (2) PLJR 512. It has been held in this decision that circular/letter being merely an administrative order could not be given retrospective effect. (XVIII) One more peculiar facts has been pointed out by the petitioners that petitioners' school was established and administered by minority and therefore, as per Article 30 of the Constitution of India, they have right to establish and administer educational institutions which includes right to appoint the teaching staffs as well as non-teaching staffs. It has been held by the Hon'ble Supreme Court in SECY., MALANKARA SYRIAN CATHOLOC COLLEGE Vs. T. JOSE AND OTHERS reported in (2007) 1 SCC 386 in paragraph 19 as under: (quote) (emphasis supplied) “19. It has been held by the Hon'ble Supreme Court in SECY., MALANKARA SYRIAN CATHOLOC COLLEGE Vs. T. JOSE AND OTHERS reported in (2007) 1 SCC 386 in paragraph 19 as under: (quote) (emphasis supplied) “19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus: (i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights: (a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution; (b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees; (c) to admit eligible students of their choice and to set up a reasonable fee structure; (d) to use its properties and assets for the benefit of the institution. (ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-à-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also. (iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1). (iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection. Such regulations do not in any manner interfere with the right under Article 30(1). (iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection. (v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1).” (XIX) Thus, right of minority to establish and administer educational institutions of their choice includes the right to appoint teaching as well as non-teaching staffs and therefore also, the circular bearing no.2501 dated 31st December, 1982 is not applicable to Kabiria Urdu Middle School, Mango, Jamshedpur. Therefore, reason given in the impugned order dt. 20th August, 2001 (at annexure 2), that the school has not selected teachers from the “panel of teachers prepared by the State Authority is violative of Article 30 of the Constitution of India. (XX) Contention raised by the State that the school in question was never declared as a minority school, is also not accepted by the Court mainly for the reason that once a school is established and administered by minorities for educational purposes, it would continue to be so, irrespective of the fact whether the Government declares it as such or not. When the Government declares that the schools is a minority school, it has recognized a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existence antecedent to such declaration. Thus, there is no need of declaration by the State once an educational institution is established and administered by the minority. It has been held by the Hon'ble Supreme Court in N. Ammad Vs. Manager, Emjay High School and others reported in (1998) 6 S.C.C. 674 in paragraphs 12, 13 as under: “12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus: “30. (1) All minorities, whether based on a religion or language, shall have the right to establish and administer educational institutions of their choice.” 13. When the Government declared the School as a minority school it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have exited antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 281994.” (Emphasis supplied) (XXI) There is already an application preferred by Kabiria Urdu Middle School, Mango, Jamshedpur in the year 1978. In view of these facts also, the circular bearing no.2501 dated 31st December, 1982 is not applicable to the petitioners. (XXII) As a cumulative effect of the aforesaid reasons and the judicial pronouncements, decision earlier held by the Patna High Court as referred to herein above are binding to this Court. Section 84 of the Bihar Reorganisation Act, 2000 is pari materia with Section 87 of the Bombay Reorganisation Act, 1960. Section 87 of the Bombay Reorganisation Act, 1960 reads as under: “87. Territorial extent of law. The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent legislature or other competent authority be construed as meaning the territories within that State immediately before the appointed day”. (XXIII) It has been held by the Hon'ble Gujarat High Court in the case of State of Gujarat vs. Gordhandas Keshvaji Gandhi and others reported in AIR 1960 Guj. (XXIII) It has been held by the Hon'ble Gujarat High Court in the case of State of Gujarat vs. Gordhandas Keshvaji Gandhi and others reported in AIR 1960 Guj. 49 that the decisions of the Bombay High Court given prior to 1st of May, 1960 are binding on Gujarat High Court as successor Court on principle of judicial comity. State of Gujarat was bifurcated under the Bombay Reorganisation Act, 1960 w.e.f 1st May, 1960. As per Section 87 of the 1960 Act, the provisions of Part II shall not be deemed to have affect any change in the territories to which any law in force immediately before the appointed day extends or applies. Para 28 of this decision reads as under : “(28) Our answer to the question referred to this Special Full Bench is that the decision of the Bombay High Court given prior to the appointed day, i.e., to 1st May, 1960, do not constitute 'any law in force immediately before the appointed day' within the meaning of S.87 of the Bombay Reorganisation Act, 1960. We hold that the decisions of the High Court of Bombay given prior to 1st May 1960 have as much binding force and effect as if they were the decisions given by the Gujarat High Court itself. A decision of a single Judge of the Bombay High Court given prior to 1st May, 1960 would have the same binding force and effect as a decision of a single Judge of the Gujarat High Court; a decision of a Division Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a Division Bench of the Gujarat High Court and a decision of a Full Bench of the Bombay High Court given prior to 1st May, 1960 would have the same binding force and effect as a decision of a Full Bench of the Gujarat High Court” (Emphasis supplied) (XXIV) Now section 84 of the Bihar Reorganisation Act, 2000 as stated herein above, is para materia with Section 87 of the Bombay Reorganisation Act, 1960. Section 84 of the Bihar Reorganisation Act, 2000 reads as under: “ 84. Territorial extent of laws. Section 84 of the Bihar Reorganisation Act, 2000 reads as under: “ 84. Territorial extent of laws. The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day.” (XXV) In view of the aforesaid decision, both the decisions as stated herein above, i.e. reported in 1988 PLJR 646 and decision rendered by the Hon'ble Patna High Court reported in 1992 (2) PLJR 512 are binding in the light of Section 84 of the Bihar Re-organisation Act, 2000. 7. As a cumulative effect of the aforesaid facts and reasons, the circular bearing no.2501 dated 31st December, 1982 is not binding to the petitioners as it cannot be given retrospective effect from 01.1.971 as well as for the aforesaid reasons also, the same is not binding upon the present petitioners. Hence, I hereby set aside the order passed by the Secretary, Human Resources Development Department, State of Jharkhand, Ranchi dated 20th August, 2001 (annexure2 to the memo of the petition) and I hereby direct the respondents to make the payment of salary to the petitioners in accordance with law for the period running from October, 2001 onwards within a period of four weeks from the date of receipt/production of a copy of this order. 8. Writ petition is allowed and disposed of with the aforesaid directions and observations.