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2013 DIGILAW 166 (PAT)

Mohammad Shabbir Ahmad v. State of Bihar

2013-02-05

NAVANITI PRASAD SINGH

body2013
JUDGMENT 1. These three writ petitions being interdependent have been heard on different occasions and are being disposed of by a common order. Petitioner in C.W.J.C. No.9764 of 1993 is the same as the petitioner in C.W.J.C. No.11506 of 2004. The fate of petitioner in C.W.J.C. No.9727 of 2000 is dependent upon the fate of the earlier two writ petitions. Counter affidavits and rejoinders are on record. 2. The solitary question that arises in these writ petitions is whether the Bihar School Service Board (as it then was), having granted approval in relation to appointment of a teacher in a minority educational institution, can recall its order and order of cancellation of appointment of a teacher in a minority institution. My answer to the said question would be emphatic no for more than one reason. 3. It is not in dispute that at Bishanpur, in the erstwhile district of Bhagalpur now in the district of Banka, there is a school known as Azad High School. It is a Muslim minority school. It was recognized as such by the State Government as far back as in the year 1965 itself. The school is a general school conducting courses up to matriculation under the Bihar School Examination Board. In 1980, the State Government decided to take over most of the privately managed secondary schools and enacted an ordinance which, ultimately, culminated in the Bihar Non-Government Secondary School (Taking Over of Management and Control) Act, 1981. Section 18 of the said Act deals with minority institutions. In terms of Articles-29&30 of the Constitution of India Section 18 of the said Act, inter alia, provided that a minority school would not be taken over if it was managed by a registered society. Section 18 further provides that so far as appointment of teachers in such minority recognized school are concerned, the Managing Committee would be free to make appointment but it had to seek approval from the Bihar School Service Board. Thus, if the minority school was a Government aided minority school then the post had to be sanctioned by the Government and appointments made to the posts had to be approved by the Government through the Bihar School Service Board. 4. In respect of the dispute in relation to the petitioner, it appears that there was one post of history teacher sanctioned for this school. That had fallen vacant. 4. In respect of the dispute in relation to the petitioner, it appears that there was one post of history teacher sanctioned for this school. That had fallen vacant. The petitioner, who had done B.A in history and had basic teacher’s training, was allowed to take classes in interest of the students. The Managing Committee resolved to advertise the post for regular permanent appointment. Accordingly, advertisement was issued. Petitioner and several others applied. Six persons appeared in the written test and, ultimately, five persons appeared for the interview. The petitioner was selected on the recommendation of the selection committee by resolution no.2 dated 08.02.1988. Petitioner’s services were deemed to be regularized with effect from 01.07.1987. This was so because even prior to the advertisement issued petitioner had been working on the vacant post. Thereafter, letter of appointment was issued under the signature of the Secretary of the Managing Committee who happened to be the father of the petitioner. Thus, having been appointed, petitioner’s case was then referred to the Bihar School Service Board. There were then exchanges of correspondences as between the Managing Committee of the school, the Bihar School Service Board and the District Education Officer, Bhagalpur. Enquiries were ordered to be made. After enquiries were made report submitted. The District Education Officer having recommended for grant of approval and, ultimately, on 29.09.1989 after two years of selection, the Bihar School Service Board granted approval to the appointment of the petitioner as a history teacher. I will not go into the controversy that took place thereafter wherein the private-respondent no.8 alleges that in 1991 he got to be selected for the same post by a different Managing Committee, which, he alleges is the proper Managing Committee. Unfortunately, respondent no.8 is not able to satisfy the Court as to the fact that when the Bihar School Service Board had granted approval to the petitioner’s appointment on 29.09.1989 then without the said approval being cancelled/withdrawn or petitioner resigning, superannuating or dying how was there a vacancy for even an initiation of a process for appointment of private-respondent no.8. The private-respondent no.8 claims to be appointed on 27.10.1991. As noted above, at this point of time Bihar School Service Board had already approved the appointment of the petitioner. That approval was still valid and operative. The private-respondent no.8 claims to be appointed on 27.10.1991. As noted above, at this point of time Bihar School Service Board had already approved the appointment of the petitioner. That approval was still valid and operative. How ignoring the said approval or without getting it vacated or withdrawn respondent no.8 was appointed is not explained. The only thing that is suggested is that new Managing Committee had to come into being. However, the facts remains that in 1991 there was only one post of history teacher in the school and at least on paper it was occupied by the petitioner who had due approval from the Bihar School Service Board as statutorily required under Section 18 of the Act. Now, the problem starts. The problem is that respondent no.8 had to get his services approved. That could not have been approved under any circumstances so long as the approval granted in favour of the petitioner remained on record. Thus, efforts were made to persuade the Bihar School Service Board (hereinafter referred to as the Board) to cancel and/or recall its approval. The Board was persuaded to do so and, accordingly, the approval granted by it way back in 1989 to the petitioner’s appointment was recalled on 04.08.1993. The effect of this is that virtually petitioner’s selection and appointment as a teacher made as far back as in 1987 stood cancelled. What surprises the Court is that even though such withdrawal and approval earlier granted several years back has serious civil consequences so far as the petitioner is concerned, no one thought it appropriate even to give a single notice to him. He was not even heard in the matter and virtually his appointment was cancelled by the same authority who had earlier granted approval to the appointment. That is the first writ petition challenging this action. 5. During pendency of the first writ petition, this private-respondent no.8 claims that he was appointed and now that petitioner’s appointment had been disapproved, appointment of private-respondent no.8 was approved by the Board on 31.10.1995, though the appointment is alleged to have been made in 1991 when there was no vacancy. During pendency of the first writ petition, once again the Board reconsidered the matter and then re-approved the petitioner’s appointment. Thus, recalling its earlier order dated 09.08.1993 and re-approved on 12.06.2004, which thereafter was again cancelled on 05.08.2004. During pendency of the first writ petition, once again the Board reconsidered the matter and then re-approved the petitioner’s appointment. Thus, recalling its earlier order dated 09.08.1993 and re-approved on 12.06.2004, which thereafter was again cancelled on 05.08.2004. This is the cause for the petitioner to come in the second writ petition. In the meantime, appointment of respondent no.8 who had managed to get approval for his appointment was faced with similar situation and his approval was also withdrawn. That brought to him to this Court in C.W.J.C. No.9727 of 2000. Consequently, the Managing Committee cancelled his appointment and as such the third writ petition. 6. In the juxtaposition of the fact, as noted above, in my view, it is not necessary to go into the question, whether the successive Managing Committee had the authority to make appointments or not. It is not in dispute that in exercise of statutory power, after due enquiry in relation to the petitioner, the statutory body, the Board had granted approvals. It is also not in dispute that on both the occasions the approvals were then withdrawn and/or cancelled without even notice to the petitioner much less giving him any opportunity of hearing in that regard. 7. In my view, that could never have been done. Whether the petitioner was correctly appointed or not; whether the petitioner was validly appointed or not; whether the petitioner was validly appointed by a validly constituted Managing Committee or not; these are all questions of fact, the determination of which could only be in a validly constituted proceedings with due notice to all the parties, including most importantly the petitioner. Petitioner was appointed and had a right to continue consequent to approval duly granted by the Board. That was at stake. Not even an informal notice was issued to the petitioner and on both occasions the approvals granted to petitioner was recalled. This is a flagrant violation of principles of natural justice. This could not have been done. The Board was exercising statutory functions and was recalling its order granting approval, which approval, as noted above, was granted after much enquiry. Those proceedings could not be so casually recalled. If anything I may refer to the judgment of the Apex Court in the case of S.L. Kapoor Vs. This could not have been done. The Board was exercising statutory functions and was recalling its order granting approval, which approval, as noted above, was granted after much enquiry. Those proceedings could not be so casually recalled. If anything I may refer to the judgment of the Apex Court in the case of S.L. Kapoor Vs. Jagmohan since reported in AIR 1981 Supreme Court 136 in which case various facets of principles of natural justice and its consequences are noticed. Here, I may also usefully refer to the judgment of the Apex Court in the case of Basudeo Tiwary Vs. Sido Kanhu University & Ors. since reported in (1998) 8 Supreme Court Cases 194 in relation to action taken under Section-35(3) of the Bihar Universities Act and in particular what is said in paragraph-12 of the said judgment, which is quoted hereunder:- “12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorized manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, rules, statutes and regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations, etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha case. In such an event, we have to hold that in the provision, there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read.” 8. Thus, in my view, the approval having been granted, it was incumbent upon the Board to issue notice to the petitioner and then after granting opportunity of hearing to the petitioner it could for valid reason withdraw the approval granted but not otherwise. It is equally well settled that an order passed in violation of principles of natural justice is void. It is non est in the eyes of law. Why I am noticing this is for two reasons. Firstly, as noted above, it would be seen that approval to petitioner’s appointment as teacher had been granted by the Board in the year 1989. That being so and there being only one position of history teacher available, it was itself a matter of enquiry as to how in 1991 respondent no.8 was then sought to be appointed because by then the approval in favour of the petitioner was still there. No vacancy was notified. It is not the case that the petitioner had resigned of had been removed. Thus, the recall of petitioner’s approval and grant of approval to respondent no.8 are both equally invalid. If that be so, there is no occasion for grant of approval once again to the petitioner and it is recall once again by the Board. Those were futile exercise. Thus, in my view, the two writ petitions by Mohammad Shabbir must succeed. The impugned orders of erstwhile Bihar School Service Board withdrawing approval granted, being order dated 04.08.1993 and 05.08.2004, are quashed. These two writ petitions are allowed. In view of the facts aforesaid, the writ petition of respondent no.8, who is the petitioner in C.W.J.C. No.9727 of 2000, becomes infructuous as no relief can be granted to him and is dismissed as such. The concerned District Education Officer is directed to take necessary follow up action.