JUDGMENT : Sujit Narayan Prasad, J. I.A. No.9884 of 2022 in L.P.A. No.506 of 2022 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 118 days in preferring this Letters Patent Appeal. 2. Heard. 3. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation. 4. Accordingly, I.A.No.9884 of 2022 is allowed and delay of 118 days in preferring the appeal is condoned. I.A. No.4113 of 2023 in L.P.A. No.133 of 2023 5. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 245 days in preferring this Letters Patent Appeal. 6. Heard. 7. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation. 8. Accordingly, I.A.No.4113 of 2023 is allowed and delay of 245 days in preferring the appeal is condoned. L.P.A. No.421 of 2022, L.P.A. No.441 of 2022, L.P.A.No.506 of 2022 & L.P.A. No.133 of 2023 9. All the appeals since arise out of common order having the identical issue, therefore, the same is being heard with the consent of the parties. 10. The intra-court appeals preferred under Clause-10 of Letters Patent is directed against the common order/judgment dated 21.06.2022 passed by the learned Single Judge of this Court in W.P.(S) Nos.2857 of 2016, 3522 of 2016, 3310 of 2016 and 3163 of 2016, whereby and whereunder, the decision has been taken in memo no.908 dated 28.04.2016 issued by the Director (Secondary Education), Jharkhand, by which, the approval of appointments on the post of Assistant Teachers in the concerned Government aided minority school was rejected, has been refused to be interfered with by dismissing the writ petitions. 11. The brief facts of the case, as per the pleading made in the writ petitions, which are required to be enumerated reads as under : 12. 11. The brief facts of the case, as per the pleading made in the writ petitions, which are required to be enumerated reads as under : 12. It is the case of the writ petitioners that the school management committee of Rayeen Urdu Girls +2 High School, Ranchi and Carmel Girls High School, Hazaribag, a Government aided minority school, after following the guidelines issued from time to time by the Government of Jharkhand, published an advertisement in Daily Prabhat Khabar on 17.01.2010, 22.05.2011 and 19.06.2009, seeking applications from experienced graduate candidates with B.Ed. (Urdu knowing) for appointment to the post of Teacher in different subjects in the said school. The writ petitioners, being eligible in all respects, applied for appointment to the post of Teacher. The writ petitioners appeared and qualified in the test conducted by the school management. Thereafter, appointment letters were issued to the writ petitioners Rizwana Khatoon and Kaneez Fatma on 12.2.2010 and 18.2.2010 respectively and they joined on 20.02.2010. Similarly, appointment letters were issued to the writ petitioners, namely, Wajda Tabassum and Sushma Toppo on 21.6.2011 and 04.07.2009 and they had joined on 22.6.2011 and 06.07.2009 respectively. Therefore, the Secretary of the concerned Schools sent proposal to the Director, Secondary Education, Ranchi and District Education Officer, Hazaribag for giving approval of writ petitioners’ appointment as Teacher. However, finally vide impugned letter dated 28.4.2016, the cases of the writ petitioners for approval of their appointments, have been rejected by the respondent no.2, which is contrary to the decision of Government contained in Memo No.34 dated 13.01.1986. 13. It appears from the factual aspects that all the writ petitioners have been appointed by the decision of the Managing Committee of Rayeen Urdu Knowing +2 High School, Ranchi and Carmel Girls High School, Hazaribag, a government aided minority schools, in pursuance to the advertisement published in Daily Prabhat Khabar on 17.01.2010, 22.05.2011 and 19.06.2009. The writ petitioners, having required educational qualifications of B.Ed. (Urdu Knowing) as also along with experience certificate, had applied to the post of Teacher in the different subjects in the said schools. 14. The writ petitioners had appeared and were qualified and declared to be successful for appointment to the said post. Accordingly, they joined on 20.02.2010, 22.6.2011 and 06.07.2009. 15. (Urdu Knowing) as also along with experience certificate, had applied to the post of Teacher in the different subjects in the said schools. 14. The writ petitioners had appeared and were qualified and declared to be successful for appointment to the said post. Accordingly, they joined on 20.02.2010, 22.6.2011 and 06.07.2009. 15. The writ petitioners have started discharging their duties but the Government has not accorded approval, rather, the request made in that regard by the Managing Committee for granting said approval was rejected vide order dated 28.4.2016 as contained in memo no.908 on the ground that the writ petitioners have been appointed after having crossed the maximum age prescribed by the State Government, i.e., after 35 years. 16. The writ petitioners, being aggrieved with the aforesaid, have preferred the writ petitions. 17. The State has taken the ground that the age as prescribed by the State Government in the circular dated 14.06.2008 and 09.12.2010 will be applicable and since, the writ petitioners have been appointed beyond the age prescribed in the said circular, therefore, their services have been refused to be approved. 18. The learned Single Judge, on consideration of the aforesaid circular, has agreed to the view of the State Government and has declined to interfere with the impugned order, against which, the present appeals, have been filed. 19. Learned counsel appearing for the appellants-writ petitioners has submitted that the ground in rejecting the approval of joining of the writ petitioners holding about the applicability of the circular dated 14.06.2008 and 09.12.2010, is absolutely incorrect, since, the said circulars are only applicable to the teachers working in the State Government, which are not applicable so far as the minority schools are concerned. But, without taking into consideration the aforesaid aspect of the matter, the learned Single Judge has refused to interfere with the impugned order and as such, the same is not sustainable in the eye of law. 20. The ground has been agitated that in absence of any rule prescribing the maximum age for recruitment in the minority aided school, the non-approval of the services of the writ petitioners, cannot be said to be proper by applying the criteria laid down which has been enacted for the purpose of recruitment in the Government schools. 21. 20. The ground has been agitated that in absence of any rule prescribing the maximum age for recruitment in the minority aided school, the non-approval of the services of the writ petitioners, cannot be said to be proper by applying the criteria laid down which has been enacted for the purpose of recruitment in the Government schools. 21. But this aspect of the matter has not been considered in right perspective and as such, the impugned order is not sustainable in the eye of law. 22. Per Contra, learned counsel appearing for the State-respondents has submitted by defending the order impugned on the ground that in absence of rule regarding the eligibility criteria in the minority school, the rule which has been fixed for the purpose of appointment of Assistant Teachers in the Government schools, will be applicable even in the case of appointment in the minority school. 23. Learned counsel, further submitted that the writ petitioners, admittedly have been appointed beyond the age as prescribed by the State Government in its circular dated 14.06.2008 and hence, if in that circumstance, the services having not been approved, the same cannot be said to suffer from an error. 24. It has been contended by referring to the circular dated 09.12.2010, wherein also, the general communication has been made by the Secretary of the concerned Department to approve the services of such teachers only if the Managing Committee of the concerned minority school has appointed the teaching staffs on the basis of the circular dated 14.06.2008. 25. Learned counsel has further submitted by relying upon the rule of Bihar Secondary Education Board, 2nd Amendment, Ordinance, 1980 which contains provision to have the eligibility criteria for the purpose of making appointment in the minority school, wherein, the same criteria is to be considered in the matter of appointment in the minority aided school, which is applicable to the school owned by the State Government, therefore, the statutory demand is also that the aided minority school is required to fill up the post of teachers only on the basis of eligibility criteria regarding the age applicable to the concerned employee. 26. 26. Learned State Counsel, on the basis of the aforesaid premise, has submitted that the writ petitioners since, have been appointed contrary to the criteria applicable for the Government owned school and in that circumstance, their services have not been approved and by taking into consideration the aforesaid ground, if the learned Single Judge has refused to interfere with the Administrative decision, the same cannot be said to suffer from an error. 27. We have heard the learned counsel for the parties, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order. 28. The admitted fact herein is that the writ petitioners have been appointed as Assistant Teachers in the minority aided school in pursuance to the advertisement published on 17.01.2010, 22.05.2011 and 19.06.2009. 29. The issue which is to be considered in this case, i.e., (i) As to whether the writ petitioners who have been appointed beyond the age of 35 years, can it be said to be illegal; (ii) Whether the eligibility criteria prescribing the maximum age limit in absence of any rule to that effect making it applicable for the minority aided school, can be taken as a ground for non-approval of services of the writ petitioners by considering the prescription of maximum age as applicable in the Government circular without its adoption by the State Government for its application to the minority aided school; and (iii) Whether the competent authority of the State Government is justified in rejecting the case of the writ petitioners from granting approval of their services by relying upon the maximum age prescription as contained in the Government circular. 30. All the three issues are interlinked, therefore, the same are being answered together. 31. This Court, before answering the said issues, is of the view that the reference of circular dated 14.06.2008 and so called circular dated 09.12.2010 as has been referred by the learned Single Judge in the impugned order, basis upon which, the learned Single Judge has refused to interfere with the Administrative decision of the authority, are required to be referred herein. 32. 32. The circular dated 14.06.2008 is applicable for filling up of the post in the government owned school, wherein, the maximum and minimum age has been prescribed category wise, for ready reference, the relevant part of the said circular is being referred as under:- ^^------------ --------ftl iapkax o"kZ esa fu;qfDr ds fy, foKkiu fudkyk tk;sxk ml iapkax o"kZ dh igyh tuojh dks mEehnokj dh mez U;wure bDdhl ¼21½ o"kZ rFkk vf/kdre vk;q dksfVokj fuEu:is.k gksxh% fodykax gsrq 1- lkekU; dksfV 40 o”kZ 45 o"kZ 2- efgyk ¼vukjf{kr@fiNM+k oxZ@vR;ar fiNM+k oxZ½ 43 o"kZ 48 o"kZ 3- vU; fiNM+k oxZ 42 o"kZ 47 o"kZ 4- vuqlwfpr tkfr ¼iq:”k@efgyk½ 45 o"kZ 50 o"kZ 5- vuqlwfpr tutkfr ¼iq:"k@efgyk½ 45 o"kZ 50 o"kZ >kj[k.M yksd lsok vk;ksx }kjk vuq'kaflr es/kk lwph ls mPp fo|ky;ksa esa lgk;d f'k{kd ds in ij fu;qfDr funs'kd] ek/;fed f'k{kk }kjk dh tk;sxhA** 34. It is evident from the same that it cannot be construed to be a circular, rather, it is merely a communication made by the Secretary of the Human Resources Development Department addressed to the District Education Officers communicating to all the concerned to grant approval of the services of the teaching and non-teaching employees of the minority aided school if they are not fulfilling the required educational qualification. The relevant part of the said letter is being referred as under:- ^^ekuo lalk/ku fodkl foHkkx izs"kd] e`nqyk flUgk] ljdkj ds lfpoA lsok esa] lHkh ftyk f'k{kk inkf/kdkjhA jk¡ph] fnukad 9@12@10 fo"k;%&jkT ds ekU;rk izkIr xSj ljdkjh vYila[;d ek/;fed fo|ky;ksa ds f'k{kd@f'k{kdsRrj deZpkfj;ksa dh fu;qfDr esa >kj[kaM jktdh;d`r ek/;fed fo|ky; ¼lsok'krZ½ fu;ekoyh ds mica/kksa dk ikyu djus ds laca/k esaA egk'k;] mi;qZDr fo"k; ds laca/k esa dguk gS fd izk;% ,slk ns[kk tk jgk gS fd jkT; ds ekU;rk izkIr xSj ljdkjh vYila[;d ek/;fed fo|ky;ksa ds iz/kkuk/;kid] f'k{kd ,oa f'k{kdsRrj dfeZ;ksa dh fu;qfDr esa jkT; ds jktdh;d`r ek/;fed fo|ky; ¼lsok'krZ½ fu;ekoyh ds mica/kksa dk ikyu ugha fd;k x;k gSA dbZ ,sls n`"Vkar vk;s gSa tgk¡ fo|ky;ksa ds izc/ak lfefr }kjk f'k{kdksa dh fu;qfDr esa jkT; ljdkj }kjk jktdh;d`r ek/;fed fo|ky; ¼lsok'krZ½ fu;ekoyh esa izko/kkfur mez lhek ls vf/kd mez lhek ds f'k{kdksa dh fu;qfDr dj yh xbZ gSA blh rjg dbZ ekeyksa esa ,slk ns[kk x;k gS fd f'k{kd@f'k{kdsRrj dfeZ;ksa dh fu;qfDr esa fu/kkZfjr vgZrk dk mYya?ku fd;k x;k gSA izca/k lfefr }kjk dh xbZ bl izdkj dh fu;qfDr esa jkT; ljdkj dk vuqeksnu nsuk laHko ugha gks ikrk gS rFkk ;g fcUnq vuko';d fookn Hkh iSnk djrk gSA 2- ;gk¡ mYys[kuh; gS fd jkT; ds ekU;rk izkIr xSj ljdkjh vYila[;d ek/;fed fo|ky;ksa esa f'k{kdksa dks jkT; ds jktdh;d`r ek/;fed fo|ky;ksa ds f'k{kdksa dh Hkkfar lHkh lqfo/kk,¡ izkIr gS rFkk mUgsa jktdh;d`r ek/;fed fo|ky;ksa ds f'k{kdksa ds leku osrueku gh ns; gksrk gSA vr% fu;qfDr ds ekeys esa fu;ekoyh esa fu/kkZfjr fdlh Hkh vgZrk dks f'kfFky djuk fdlh Hkh izdkj ls rdZlaxr ugha gSA vr% vkils vkxzg gS fd vius v/khuLFk xSj ljdkjh vYila[;d ek/;fed fo|ky;ksa dks blls voxr djk fn;k tk; lkFk gh fu;qfDr ds laca/k esa fu/kkZfjr vgZrk ikyu ugha djus ij vius Lrj ls gh izLrko dks dkj.k crkrs gq, vLohd`r dj fn;k tk; ,oa bls dnkfi vuqeksnu ds fy, foHkkx dks ugha Hkstk tk; vU;Fkk vkids fo:) gh dkjZokbZ izkjaHk dh tk ldrh gSA d`i;k vius Lrj ls vius v/khuLFk fo|ky;ksa ds chp ifjpkfjr djuk lqfuf'pr djsaA^^ 35. This Court from the impugned order has found that the learned Single Judge has given consideration of the circular dated 14.06.2008 and coupled with the same, the communication dated 09.12.2010 considering it to be a circular, has passed the impugned order. 36. This Court from the impugned order has found that the learned Single Judge has given consideration of the circular dated 14.06.2008 and coupled with the same, the communication dated 09.12.2010 considering it to be a circular, has passed the impugned order. 36. The communication dated 09.12.2010 is for the purpose of enforcement of the Government circular prescribing therein the required qualification/criteria. 37. The circular dated 14.06.2008 is a circular in the eye of law, since, the same has been issued in the name of the Governor of the State and as such, it will be construed to be executive instruction within the meaning of Article 166(3) of the Constitution of India. 38. But the communication dated 09.12.2010 can be construed to a circular, this is also a question to be considered herein. 39. The issuance of circular or resolution vests upon the Governor of the State under Article 166(3) of the Constitution of India and if such executive instruction is being issued either by way of resolution or circular, the same needs to be approved by the Cabinet before getting the seal of the Governor, since, we are living in collective system of Government, wherein, no individual functionary of the State is having any power to take decision. 40. The communication dated 09.12.2010 is issued under the signature of the Secretary of the concerned department addressed to the District Education Officers of the Districts for the purpose of compliance of educational qualification meant for teachers of the government owned school applying it to the teaching staffs of the minority aided school. But, the said communication, according to our considered view, cannot be construed to be a policy decision of the State, rather, it is only a communication issued under the signature of the Secretary addressed to the District Education Officers of the different Districts. 41. But, the said communication, according to our considered view, cannot be construed to be a policy decision of the State, rather, it is only a communication issued under the signature of the Secretary addressed to the District Education Officers of the different Districts. 41. The Secretary in the individual capacity has got no power to interfere with the internal affairs of the Managing Committee only in the garb of extending the benefit by way of grant-in-aid to the minority aided school, rather, it is the wisdom of the State to make out a rule either under proviso to Article 309 of the Constitution of India or under Article 166(3) of the Constitution of India by taking the policy decision by way of executive instruction and if such decision will be taken by the State either under the proviso to Article 309 or under Article 166(3) of the Constitution of India, the same will have its application to the government minority school. But it cannot be on the strength of communication issued by the Secretary of the concerned department as the ground has been taken while justifying the action of non-approval of the services of the writ petitioners. 42. This Court, therefore, is of the view that the communication dated 09.12.2010 is merely a communication issued under the signature of the Secretary and not by way of a policy decision taken by the State Government. 43. The emphasis has been given by the learned State Counsel upon the communication dated 09.12.2010, basis upon which, the decision of non-approving of the services of the writ petitioners, has been taken. 44. But when the communication dated 09.12.2010 is not a policy decision of the State Government, the question is that why the decision adverse to the interest of the writ petitioners, will be allowed to be taken in absence of any policy decision or rule issued in this regard by the State Government. 45. Therefore, this Court is of the view that non-approval of services of the writ petitioners based upon the communication dated 09.12.2010, cannot be said to be justified and accordingly, it is held to be unjustified. 46. 45. Therefore, this Court is of the view that non-approval of services of the writ petitioners based upon the communication dated 09.12.2010, cannot be said to be justified and accordingly, it is held to be unjustified. 46. The argument has been advanced regarding the applicability of rule of Bihar Secondary Education Board, 2nd Amendment, Ordinance, 1980, wherein, provision has been made that the parameter which is to be followed in the matter of appointment of teachers of the government owned school, is required to be followed also in the case of appointment of Assistant Teachers in the minority aided school. 47. This Court in order to appreciate the argument, as to whether the provision of rule of Bihar Secondary Education Board, 2nd Amendment, Ordinance, 1980 is applicable or not, has gone across the provision of the Rule, 1980. 48. It requires to refer herein that the erstwhile State of Bihar having considered the fact that a number of private secondary schools were established and managed by the private individuals or societies, therefore, considered it necessary to take over the Management and control of the non-government schools for better organization and development of secondary education in the State. That laid in promulgation of an Ordinance on August 11, 1980, as the Bihar Non-Government Secondary Schools (Taking over of Management and Control) First Ordinance. This Ordinance was later on replaced by another Bihar Ordinance No.74 of 1981 on April 22, 1981. The State legislature converted the Ordinance into the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981. 49. The Act as indicated by the preamble is to provide for taking over the management and control of the Non-Government Secondary Schools by the State Government, for improvement, better organization and development of Secondary Education in the State of Bihar. It appears from the aforesaid provision that the same is applicable for the secondary schools. 50. We are dealing with the issues of secondary schools, therefore, the said Act is relevant to be considered, upon which, the reliance has been placed. 51. The aforesaid Act provides provision as under Section 18 of the Act, 1981 for recognition of minority secondary schools. The aforesaid Section in entirety is being referred as under:- “18. 50. We are dealing with the issues of secondary schools, therefore, the said Act is relevant to be considered, upon which, the reliance has been placed. 51. The aforesaid Act provides provision as under Section 18 of the Act, 1981 for recognition of minority secondary schools. The aforesaid Section in entirety is being referred as under:- “18. Recognition of minority secondary schools.—(1) The schools declared a minority school under the provisions of the Bihar Secondary Education Board Act, 1976 (Bihar Act 25 of 1976) and the Bihar Secondary Education Board (Second Amendment) Ordinance, 1980 (Bihar Ordinance 82 of 1980) shall be deemed to have been recognised under the provisions of this Act. (2) The State Government may, by notification, recognise as a minority secondary school, such secondary school which has been established by a minority community on the basis of religion or language for the purposes of meeting the educational requirement and for the protection of culture of their section and which fulfils the prescribed condition of recognition. (3) The minority secondary school accorded recognition under sub-sections (1) and (2) shall be managed and controlled under the following provisions: (a) Every minority secondary school shall have a managing committee registered under the Societies Registration Act, 1862 and shall have written by-laws regarding its constitution and function. (b) According to the prescribed qualification laid down by the State Government for the teachers of the nationalised secondary schools and within the number of sanctioned posts, the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted under Section 10 of this Act. Provided that while considering the question of giving approval to appointment of any teacher under this sub-section the board shall only scrutinise as to whether the proposed appointment is in accordance with the rules laying down the qualification and the manner of making appointment framed by the State Government has been followed or not, and no more. (c) There shall be rules regarding the service conditions of teachers of minority schools based on natural justice and the prevailing law, a copy of which shall be sent to the State Government. (d) The managing committee with the approval of the School Service Board shall have powers to remove a teacher, to terminate his services, to dismiss and to discharge him from service. (d) The managing committee with the approval of the School Service Board shall have powers to remove a teacher, to terminate his services, to dismiss and to discharge him from service. Provided that for the purpose of approval any disciplinary action against the teacher by the managing committee, the Board shall scrutinise whether disciplinary proceedings have been in accordance with the rules and no more. (e) Mentally and physically incapacitated person shall not be appointed as teacher or non-teaching staff of the school. (f) No grant shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age. (g) Only such fees shall be charged from the students as are prescribed by the State Government. Prior approval of the State Government shall be necessary to charge higher fees than what is prescribed. (h) The schools shall be open to inspection on any working day by the authorised inspecting officers of the Education Department, the civil authority and authorised officers of Health Department. (i) It shall be their duty to obey instructions regarding admission and transfer of the students, discipline and punishment, records and accounts, curricular and co-curricular activity, rules regarding health and cleanliness issued or made by the State Government. (j) The State Government shall have powers to issue instructions not inconsistent with the provisions of Articles 29 and 30 of the Constitution for efficient management and for improving the standard of teaching and it shall be obligatory for the recognised minority schools to comply with them. (k) In the event of violation of this section and the rules made thereunder and the instructions issued under it, the said managing committee may make an application within sixty days of the date of the order to the officer authorised by the State Government, against the withdrawal of recognition or withholding or stopping grants and the authorised officer shall, after hearing the case, take his decision and it shall be binding.” 52. It is evident from the provision of Section 18(3)(b) which stipulates that the prescribed qualification laid down by the State Government for the teachers of the nationalized secondary schools and within the number of sanctioned posts, the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted under Section 10 of this Act. 53. 53. Provided that while considering the question of giving approval to appointment of any teacher under this sub-section the board shall only scrutinize as to whether the proposed appointment is in accordance with the rules laying down the qualification and the manner of making appointment framed by the State Government has been followed or not, and no more. 54. Sub-section (3)(f) of Section 18 stipulates that no grant shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age. 55. It is, thus, evident from bare perusal of sub-section (3)(b) of Section 18 that the said provision speaks about the prescription of qualification laid down by the State Government for the teachers of the nationalized secondary schools to be applicable in the minority aided school. 56. Sub-section (3)(f) of Section 18 contains a provision for not granting the benefit which shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age. 57. The aforesaid provision, therefore, explicitly provides if read together, that there is no barrier of age for appointment of Assistant Teacher in the minority aided school, rather, only consideration at the time of granting approval which is to be looked into by the State Government, is regarding the qualification, so that, there may not be any compromise with the educational standard by keeping the Assistant Teacher, even though they are having no educational qualification, as required for appointment of Assistant Teacher in the Government owned school. The State Government, in such circumstances, will not approve for issuance of grant-in-aid. 58. Sub-section 3(f) of Section 18 also clarifies that grant shall not be admissible for the purpose of release of salary of a teacher or non-teaching staff, if appointed or retained beyond 58 years of age, meaning thereby, if a candidate has been appointed either in the teaching capacity or non-teaching capacity, the grant will not be admissible, if appointed beyond the age of 58 years or retained beyond the age of 58 years. 59. Therefore, as per the rule of 1981, the State Government is only concern so far as release of grant if the one or the other, has been appointed or retained the service beyond the age of 58 years. 60. 59. Therefore, as per the rule of 1981, the State Government is only concern so far as release of grant if the one or the other, has been appointed or retained the service beyond the age of 58 years. 60. In other words, it will be construed that there will be no hindrance or objection on the part of the State in not releasing the benefit of grant-in-aid, if appointed beyond the age of 58 years. 61. Herein, it also requires to refer herein that the educational qualification cannot be considered to be eligibility criteria, rather, the eligibility criteria within the meaning of ‘eligibility’ come under the fold of qualification, since, the same is additional norms laid down by the rule making authority. 62. Difference in between the ‘eligibility’ and ‘qualification’ has been discussed by the Hon’ble Apex Court in the judgment rendered in the case of Dr. Preeti Srivastava & Anr. Vs. State of M.P. & Ors., reported in [ (1999) 7 SCC 120 ], wherein, at pagraph-39, the same has been explained as under:- “39. The respondents have emphasised the observation that admission has to be made by those who are in control of the colleges. But, the question is, on what basis? Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of the judgments, the words “eligibility” and “qualification” have been used interchangeably, and in some cases a distinction has been made between the two words — “eligibility” connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while “qualifications” connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.” 63. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.” 63. Similar view has been taken by the Hon’ble Apex Court in the judgment rendered in the case of State of Gujarat & Ors. Vrs. Arvind Kumar T. Tiwari & Anr., reported in [ (2012) 9 SCC 545 ], wherein, at paragraph-9, it has been held as under:- “9. The eligibility for the post may at times be misunderstood to mean qualification. In fact, eligibility connotes the minimum criteria for selection, that may be laid down by the executive authority/legislature by way of any statute or rules, while the term “qualification”, may connote any additional norms laid down by the authorities. However, before a candidate is considered for a post or even for admission to the institution, he must fulfil the eligibility criteria. (Vide Preeti Srivastava v. State of M.P. [ (1999) 7 SCC 120 : AIR 1999 SC 2894 ] )” 64. The purpose of referring the said judgment is that qualification can be added with the eligibility criteria only by virtue of rule framed in this regard by the State Government. 65. But even accepting that Rule 1981 is there for secondary schools making it applicable to the minority aided school, then also it would be evident from the provision of Section 18(3)(b) that the same only speaks about the prescription of qualification and not the other eligibility criteria coupled with the provision of Section 18(3)(f) where the ‘grant-in-aid’ is to be made admissible if the person concerned has been appointed prior to the age of 58 years, however, no grant shall be admissible if appointed or retained beyond 58 years of age. 66. The question of scope of Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 fell for consideration before the Hon’ble Apex Court in the case of All Bihar Christian Schools Association and Anr. Vrs. State of Bihar & Ors., reported in [ (1988) 1 SCC 206 ], wherein, the constitutionality of Section 3 and Section 18(3) has been considered. 67. Vrs. State of Bihar & Ors., reported in [ (1988) 1 SCC 206 ], wherein, the constitutionality of Section 3 and Section 18(3) has been considered. 67. The Hon’ble Apex Court has considered the Section 18 of the aforesaid Act particularly sub-section 3 thereof and while holding the constitutional validity on the ground of interference by the State Government in the internal affairs of the Management of the Managing Committee of the minority aided school. 68. The Hon’ble Apex Court on consideration of implication of the aforesaid provision has been pleased to hold that clause (c) and (d) of Section 18(3) are regulatory in nature which requires the Managing Committee to frame rules of employment consistent with the principle of natural justice and the prevailing law. No outside agency is required to frame rules of employment of teachers instead the management itself is empowered to frame rules. Therefore, there is no element of interference with the management’s right to administer a minority school. 69. It has further been held therein that clause (b) provides for two things, firstly it requires the managing committee of a minority school to appoint teachers possessing requisite qualification as prescribed by the State Government for appointment of teachers of other nationalized schools, secondly, the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board constituted under Section 10 of the Act. 70. Proviso to clause (b) lays down that the School Service Board while considering the question of granting approval to the appointment of a teacher, shall ascertain if the appointment is in accordance with the rules laying down qualifications, and manner of making appointment framed by the State Government. The proviso makes it clear that the School Service Board has no further power to interfere with the right of managing committee of a minority school in the appointment of a teacher. Under clause (b) the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board. 71. The expression ‘concurrence’ means approval. Such approval need not be prior approval, as the clause does not provide for any prior approval. 72. Under clause (b) the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board. 71. The expression ‘concurrence’ means approval. Such approval need not be prior approval, as the clause does not provide for any prior approval. 72. Object and purpose underlying clause (b) is to ensure that the teachers appointed in a minority school should possess requisite qualifications and they are appointed in accordance with the procedure prescribed and the appointments are made for the sanctioned strength. 73. The selection and appointment of teachers is left to the management of the minority school; there is no interference with the managerial rights of the institution. In granting approval the School Service Board has limited power. The appointment of qualified teachers in a minority school is a sine qua non for achieving educational standard and better administration of the institution. 74. Clause (b), therefore, is regulatory in nature to ensure educational excellence in the minority school. Clause (c) requires a minority school to frame rules regulating conditions of service of its teachers; such rules should be consistent with principles of natural justice and the prevailing law. 75. It has further been held that Section 18(3)(f) which provides that the State shall not pay any grant towards the payment of salary of a teacher or other employee of a minority institution if he is appointed or permitted to be retained beyond 58 years of age. In the State of Bihar, the age of superannuation is fixed at 58 years for its employees. Consistent with that policy this clause provides that public funds of the State shall not be used for the employment of a person in service who may have crossed 58 years of age. This however, does not place any restriction on the right of the management of the minority institution to employ or retain a person beyond 58 years of age; the management is free to do so but if the management does so, the State shall not be responsible for paying grants towards the salary of such teacher or employee. This provision does not in any way interfere with the minorities’ right of administration of its institution, for ready reference, paragraphs-13 and 18 of the judgment rendered by the Hon’ble Apex Court in the case of All Bihar Christian Schools Association and Anr. Vrs. This provision does not in any way interfere with the minorities’ right of administration of its institution, for ready reference, paragraphs-13 and 18 of the judgment rendered by the Hon’ble Apex Court in the case of All Bihar Christian Schools Association and Anr. Vrs. State of Bihar & Ors.(supra), are being referred as under:- “13. Section 18(3) provides that recognised minority secondary schools shall be managed and controlled in accordance with the provisions contained in clauses (a) to (k). Clause (a) requires a minority secondary school to have a managing committee registered under the Societies Registration Act, 1862 and to frame written bylaws regulating constitution and functions of the managing committee. The by-laws regarding the constitution of the managing committee are required to be framed by the minority institution itself. The State or any other authority has no power or authority to impose any terms or conditions for the constitution of the managing committee. If a society running a minority institution frames written by-laws providing for the constitution of managing committee entrusted with the function of running and administering its school it would ensure efficient administration. This clause is in the interest of the minority institution itself, as no outsider is imposed as a member of the managing committee, there is no interference with the minorities' right to administer its school. Clause (b) provides for two things, firstly it requires the managing committee of a minority school to appoint teachers possessing requisite qualifications as prescribed by the State Government for appointment of teachers of other nationalised schools, secondly, the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board constituted under Section 10 of the Act. Proviso to clause (b) lays down that the School Service Board while considering the question of granting approval to the appointment of a teacher, shall ascertain if the appointment is in accordance with the rules laying down qualifications, and manner of making appointment framed by the State Government. The proviso makes it clear that the School Service Board has no further power to interfere with the right of managing committee of a minority school in the appointment of a teacher. Under clause (b) the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board. The expression “concurrence” means approval. The proviso makes it clear that the School Service Board has no further power to interfere with the right of managing committee of a minority school in the appointment of a teacher. Under clause (b) the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board. The expression “concurrence” means approval. Such approval need not be prior approval, as the clause does not provide for any prior approval. Object and purpose underlying clause (b) is to ensure that the teachers appointed in a minority school should possess requisite qualifications and they are appointed in accordance with the procedure prescribed and the appointments are made for the sanctioned strength. The selection and appointment of teachers is left to the management of the minority school; there is no interference with the managerial rights of the institution. In granting approval the School Service Board has limited power. The appointment of qualified teachers in a minority school is a sine qua non for achieving educational standard and better administration of the institution. Clause (b) is regulatory in nature to ensure educational excellence in the minority school. Cause (c) requires a minority school to frame rules regulating conditions of service of its teachers; such rules should be consistent with principles of natural justice and the prevailing law. The clause further requires the minority institution to submit a copy of such rules to the State Government. This clause in substance lays down that the management of a recognised minority school shall frame rules, regulating conditions of service of teachers and such rules shall conform to principles of natural justice and prevailing law. These provisions are directed to avoid uncertainty and arbitrary exercise of power. If rules are framed by the management those rules would bring uniformity in administration and there would be security of employment to teachers. In a civilised society the observance of principles of natural justice is an accepted rule; these principles contain basic rules of fair play and justice and it is too late in the day to contend that while administering a minority school the management should have right to act in contravention of the principles of natural justice. Clause (c) is regulatory in nature which requires the managing committee to frame rules of employment consistent with principles of natural justice and the prevailing law. Clause (c) is regulatory in nature which requires the managing committee to frame rules of employment consistent with principles of natural justice and the prevailing law. No outside agency is required to frame rules of employment of teachers instead the management itself is empowered to frame rules. There is therefore no element of interference with the management's right to administer a minority school. 18. Clause (e) of Section 18(3) merely provides that mentally and physically incapacitated person shall not be appointed as teacher or non-teaching staff of the school. If mentally and physically incapacitated persons are appointed to a minority institution it will serve no useful purpose instead the institution will suffer. Therefore appointment of disabled persons will not be in the interest of the administration of a minority school itself. Clause (f) of Section 18(3) provides that the State shall not pay any grant towards the payment of salary of a teacher or other employee of a minority institution if he is appointed or permitted to be retained beyond 58 years of age. In the State of Bihar the age of superannuation is fixed at 58 years for its employees. Consistent with that policy this clause provides that public funds of the State shall not be used for the employment of a person in service who may have crossed 58 years of age. This however, does not place any restriction on the right of the management of the minority institution to employ or retain a person beyond 58 years of age; the management is free to do so but it the management does so, the State shall not be responsible for paying grants towards the salary of such teacher or employee. This provision does not in any way interfere with the minorities' right of administration of its institution. Clause (g) provides that only such fees shall be charged from the students as prescribed by the State Government and the management is not permitted to charge higher fees except with prior approval of the State Government. In the counter-affidavit filed on behalf of the State it has been stated that education up to matriculation is free in the State and therefore no fees is charged from the students. In the counter-affidavit filed on behalf of the State it has been stated that education up to matriculation is free in the State and therefore no fees is charged from the students. Consistent with the general policy the State has made it a condition of recognition to a minority school in providing that fees shall be charged from the students as prescribed by the State Government and if the management decides to charge higher fees it must seek the approval of the State Government. This provision is regulatory in nature. It would not be in the interest of the minority schools to charge higher fees as that would be against the interest of the institution itself. If the managing committee finds that circumstances exist to charge higher fees to meet the needs of the institution, it may place the necessary facts and circumstances before the State Government and in that event the State Government shall consider the question of granting permission.” 76. It is, thus, evident that the Act, 1981 which is regulatory in nature and the Hon’ble Apex Court has been pleased to clarify its implication which is only to be looked into by the State Government for the purpose of having the standard of education which can only be possible if the educational qualification which has been fixed by the State Government for appointment of teacher in the government owned school has been made applicable and there is no other stipulation and therefore, the Act, 1981 has been held to regulatory. 77. Further, the Hon’ble Apex as under paragraph-18 of the said judgment has clarified that even beyond the age of 58 years, the teaching or non-teaching employee can be appointed by the Managing Committee but in such circumstances, the State Government will not grant any grant-in-aid. Therefore, the Hon’ble Apex Court has also considered the fact that there is non-availability of the prescription of maximum age. 78. This Court, therefore, is of the view that even under the Act, 1981, there is no prescription of maximum age as the ground has been taken on behalf of the respondent-State of Jharkhand. 79. This Court, therefore, is further of the view that the ground of applicability of the Act, 1981 is having no force and as such, the same is hereby rejected. 80. 79. This Court, therefore, is further of the view that the ground of applicability of the Act, 1981 is having no force and as such, the same is hereby rejected. 80. The Managing Committee has made a request for approval but citing instance on the circular dated 14.06.2008 and communication dated 09.12.2010, the services have not been approved on the ground that they have been appointed beyond the maximum age prescribed by the government circular made for the teachers to be appointed in the government owned school. 81. This Court has also held hereinabove that the communication dated 09.12.2010 cannot be said to be a policy decision of the State Government and as such, there is no question of applicability of age prescribed in the circular dated 14.06.2008 and further by taking into consideration the provision of the Act, 1981 as per the discussion made hereinabove, there was no occasion for the State Government to reject the issue of approval of services of the writ petitioners by passing the impugned order. 82. This Court after having discussed the aforesaid fact has considered the order passed by the learned Single Judge of this Court, wherefrom, it is evident that the learned Single Judge has considered the fact that in absence of any rule, a rule to the teaching/non-teaching employee in the government owned school, will be applicable and the appointment in such owned school, the maximum age limit is there. The writ petitioners admittedly have crossed the said age and hence, as per the government circular dated 14.06.2008, communication dated 09.12.2010 and 25.04.2013, the denial of the approval by the competent authority has been considered to be proper. 83. This Court, with due respect, is not in agreement with such submission in view of the discussion made hereinabove that the circular dated 14.06.2008 does not speak about its applicability with the minority aided school as also the communication dated 09.12.2010 cannot be construed to be a policy decision of the State Government. 84. Further, the learned Single Judge has come to the conclusion by giving a finding regarding the judgment passed by this Court in the case of Mithilesh Kumar Pandey Vs. The State of Jharkhand & Ors. [W.P.(S) No.7741/2006] which has been held to be per incuriam, the same has been passed without taking into consideration the circular dated 14.06.2008, 09.12.2010 and 25.04.2013. 85. The State of Jharkhand & Ors. [W.P.(S) No.7741/2006] which has been held to be per incuriam, the same has been passed without taking into consideration the circular dated 14.06.2008, 09.12.2010 and 25.04.2013. 85. There is no doubt that the judgment which is per incuriam does not bind the Court, since, per incuriam literally means that it does not then have to be followed as precedents. Per incuriam applies to mean 'per ignorantiam'. It would almost seem that 'ignorantia juris neminem excusat' – the said report of law is ignorance of a statute, or of a rule having statutory effect which would have affected the decision if the court had been aware of it. 86. The issue of per incuriam has been considered by the Hon’ble Apex Court in the case of State of Orissa & Anr. Vrs. Mamta Mohanty, reported in [ (2011) 3 SCC 436 ]. 87. This Court has considered the order passed in W.P.(S) No.7741/2006 which was disposed of vide judgment dated 28.10.2016, by which, a letter dated 12.06.2006 issued by the Director, Primary Education, Govt. of Jharkhand as also the letter dated 12.01.2007 issued by the Secretary, Yogda Satsang, were quashed and aside by giving direction for reinstatement of the writ petitioner in service. Such decision was given by the learned Single Judge in the aforesaid case by taking into consideration the provision of Section 18(3)(f) of the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance, 1981. However, the said order was challenged by the State in intra-court appeal being L.P.A. No.221 of 2017. 88. This Court has also considered the aforesaid judgment (L.P.A. No.221 of 2017) from which it would be evident from the fact as has been referred at paragraph-8 wherein the reference of advertisement published on 27.06.2003 has been made wherein it was clearly mentioned that the candidate should be preferably under 35 years of age. 89. But appointment has been made of such candidates who have crossed the age of 35 years without granting any relaxation. 90. 89. But appointment has been made of such candidates who have crossed the age of 35 years without granting any relaxation. 90. The coordinate Division Bench of this Court on consideration of the statement of the State in that case which has made to the effect that circulars/orders governing the field of appointment of Government employees shall not be applicable to the case of the petitioner and the only embargo upon the approval of salary was that he should not be appointed beyond the age of 58 years, cannot be taken into consideration. 91. But the said statement has not been acceptable by the coordinate Division Bench of this Court by taking into consideration, the prescription of age only in the advertisement itself and the writ petitioner of the said case was over age on the date of advertisement itself as also on the date of appointment, and there was no age relaxation in favour of the petitioner by the school management. 92. The coordinate Division Bench has further considered that the writ petitioner was appointed in the Non-Government Primary School, but the learned Single Judge while passing the order in W.P.(S) No.7741 of 2006, has not taken into consideration the aforesaid fact and accordingly, the order dated 28.10.2016 passed in W.P.(S) No.7741 of 2006 has been quashed and set aside. 93. Therefore, it is evident from the perusal of the judgment passed by the coordinate Division Bench of this Court in L.P.A. No.221 of 2017 that the order passed by the learned Single Judge in W.P.(S) No.7741 of 2006 has been quashed and set aside on the ground that the consideration has not been given about the prescription of age in the advertisement itself. 94. But herein, we, on perusal of the advertisement, have found that there is no prescription of the maximum age and hence, on fact, the judgment passed by the coordinate Division Bench of this Court in L.P.A. No.221 of 2017, is not applicable in the facts and circumstances of the instant case. 95. 94. But herein, we, on perusal of the advertisement, have found that there is no prescription of the maximum age and hence, on fact, the judgment passed by the coordinate Division Bench of this Court in L.P.A. No.221 of 2017, is not applicable in the facts and circumstances of the instant case. 95. Further, the issue in L.P.A. No.221 of 2017 pertains to Non-Government Primary School but here the case is of minority aided school for which, the specific Act, i.e., the Act, 1981 is there and as yet, there is no rule formulated prescribing the maximum age of appointment, rather, only rider is under Section 18(3)(f) for not granting the benefit of grant-in-aid, if appointment has been made beyond the age of 58 years or the concerned employee has retained beyond the age of 58 years but that is not the case herein. 96. This Court has considered the finding recorded by the learned Single Judge in the impugned order that in the advertisement if there is no prescribed maximum age or maximum age, the same will be governed by the government decision, cannot be held to be correct proposition, as per the provision of the Act, 1981 having been considered by the Hon’ble Apex Court in the case of All Bihar Christian Schools Association and Anr. Vrs. State of Bihar & Ors. (supra), otherwise, the issue of interference with the internal affairs of the Managing Committee will be there which as per the law laid down by the Hon’ble Apex Court in the aforesaid judgment, is not permissible. 97. In view of the discussion made hereinabove, the issues are being answered accordingly. 98. This Court, in the entirety of the facts and circumstances of the case and as per the discussion made hereinabove, is of the view that the order passed by the learned Single Judge, requires interference. 99. As such, the order dated 21.06.2022 passed by the learned Single Judge in W.P.(S) Nos.2857 of 2016, 3522 of 2016, 3310 of 2016 and 3163 of 2016 are hereby quashed and set aside. 100. In the result, the instant appeals stand allowed. 101. In consequence thereof, the writ petitions being W.P.(S) Nos.2857 of 2016, 3522 of 2016, 3310 of 2016 and 3163 of 2016 also stand allowed. 102. 100. In the result, the instant appeals stand allowed. 101. In consequence thereof, the writ petitions being W.P.(S) Nos.2857 of 2016, 3522 of 2016, 3310 of 2016 and 3163 of 2016 also stand allowed. 102. The respondents’ authorities are directed to take the follow up action at the end of the State Government to be taken within the stipulated period of three months’ from the date of receipt/production of copy of this order. 103. In consequent to disposal of these appeals, Interlocutory Application(s), if any, also stands disposed of.