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Mahakant Jha v. Special Secretary, Education Deptt., Patna And Others

Patna High Court

Feb 1, 1983

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The petitioner filed a writ petition under Article 226 of the Constitution seeking a writ of mandamus directing the respondents to (a) pay arrears of salary from 21-5-1977 for services rendered in Balika Uchcha Vidyalaya, Bariarpur, Monghyr, and (b) confirm and approve his appointment as an Assistant Teacher from the date of appointment by the Secretary of the Managing Committee.

The factual matrix asserted by the petitioner (as pleaded in the writ) is as follows:

The petitioner applied for a permanent History Teacher post in response to an advertisement dated 28-5-1976, claiming qualification (History Hons in 1968 and Teachers Training in 1970).
He was given a letter of appointment by the Secretary of the Managing Committee and joined the school on 21-6-1976. The Managing Committee purportedly adopted a resolution (No.3) approving his appointment at a meeting dated 30-5-1976 and later regularised his appointment on 4-11-1977.
The Board of Secondary Education examined records and, according to the petitioner, issued communications culminating in an office order of the District Inspectress of Schools dated 5-10-1977 (Annexure 3) approving the provisional appointment and entitling the petitioner to the Kothari scale of pay.
The petitioner received Rs. 3,340 in November 1977 towards salary for 21-6-1976 to 20-5-1977 but alleged that subsequent emoluments and arrears were withheld despite his continued teaching. He made repeated representations to departmental authorities from the 1970s through 1981, to no avail.
On 25-11-1980 an Ordinance was promulgated effecting State take-over of non-government high schools with effect from 2-10-1980; the petitioner contends his school was taken over and that post-takeover the respondents failed to acknowledge or approve his pre-takeover appointment as required by law.
The petitioner produced a permission/recommendation (Annexure 13) from the Sub-divisional Education Officer permitting him to appear in an M.A. examination, which the petitioner relied on to show he had continued in school service.

Legal Issues Presented

Whether the petitioner was entitled to a writ of mandamus directing respondents to pay arrears of salary for the period claimed (from 21-5-1977) based on the alleged appointment and continued service.
Whether the appointment said to have been made by the Secretary of the Managing Committee (and purportedly regularised by the Managing Committee and subsequently approved by departmental officers) was a valid appointment capable of attracting payment and confirmation, given the statutory regime in force (Ordinance dated 22-4-1976 and subsequent provisions).
Whether the facts that the petitioner was allowed to work and was acknowledged by school authorities could give rise to an equitable or estoppel-based obligation on the State/authorities to validate the appointment or pay arrears, despite alleged statutory non-compliance.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted he was fully qualified for the post and had been appointed (letter of appointment by the Secretary), joined on 21-6-1976, and was thereafter regularly treated and acknowledged as a teacher by the school and education authorities.
He relied on the Managing Committee's resolutions (including Resolution No.3 dated 31-5-1976) and later regularisation (4-11-1977), and on departmental communications (including Annexure 3) as validating his appointment and entitling him to Kothari scale pay and arrears.
The petitioner contended that because authorities took his services and acknowledged him as a teacher, they were liable to pay emoluments and could not later deny his appointment (an argument invoking responsibility arising from acceptance of services).
As an alternative grievance he contended that after the State take-over the respondents erred in not acknowledging/approving his pre-takeover appointment as required by law.
His counsel additionally attempted to argue (when addressing competence issues) that the Sub-divisional Education Officer was competent only for boys' schools under earlier 1972 rules (an argument the Court recorded and rejected in light of the later Ordinance).

The opinion does not contain a detailed account of the respondents' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
University of Kashmir v. Dr. Mohd. Yasin, AIR 1974 SC 238	Doctrine that administrative or implied engagement (continuation in post by an authority lacking power or acting beyond statutory limits) cannot subvert a statutory scheme regulating appointments; impermissibility of validating appointments by administrative drift or post facto acceptance when statute circumscribes power.	The Court relied on this Supreme Court authority to reject the petitioner's contention that acceptance of his services and acknowledgment by authorities could validate an appointment made by an authority not competent under the statutory scheme. The precedent was applied to hold that statutory violation could not be cured by administrative drift or implied engagement.

Court's Reasoning and Analysis

The Court's analysis proceeded in a stepwise application of statutory interpretation and administrative law principles strictly framed by the facts pleaded in the petition:

Identification of the statutory regime: The Court noted that at the time of the petitioner's appointment the law governing appointments to teachers in High Schools was contained in an Ordinance promulgated on 22-4-1976 (referred to as The Bihar Madhyamic Shiksha Board, Dwitiya Adhyadesh, 1976). Chapter VI of that Ordinance established a comprehensive procedure for appointment and repealed earlier laws on the subject.
Competence under the Ordinance: Under that regime the Managing Committee and the Secretary of the school did not appear as competent authorities to make appointments except as to one limited circumstance under sub-section (5) of Section 44, which permitted the Managing Committee to appoint for a maximum period of six months but only with prior approval of the Sub-divisional Education Officer. The Court concluded the initial appointment by the Secretary lacked competence under the statutory framework.
Invalidity of purported approvals: The Court examined the sequence of internal resolutions and communications relied upon by the petitioner (resolutions of the Managing Committee, alleged orders of the Chairman of the Board, and the Inspectress's communication in Annexure 3) and treated them as administrative acts in ignorance or violation of law. The Court emphasized that a post facto or ex post approval could not validate an appointment made without prior statutory authority.
Repeal of earlier rules: The Court rejected the petitioner's counsel's attempt to rely on earlier 1972 rules (including a submission that the Sub-divisional Education Officer was competent only for boys' schools) by holding that the 1976 Ordinance superseded the 1972 rules; therefore the earlier rules could not be used to sustain the appointment.
Reliance on binding precedent: The Court applied the Supreme Court's decision in University of Kashmir v. Dr. Mohd. Yasin to the effect that when statutory power is circumscribed, courts cannot countenance a parallel doctrine of implied engagement or administrative drift to validate appointments made without statutory authority. Consequently, acceptance of services and acknowledgement by authorities could not cure a statutory defect in appointment.
Conclusion from legal application: Given the statutory framework and authoritative precedent, the Court held the appointment was vitiated by the statutory violation and could not be validated by acts or communications of officers who lacked competence. On these grounds, the petitioner had no case for issuance of mandamus to compel payment or confirmation of appointment.

Holding and Implications

Holding: The writ petition is dismissed. The Court held that the petitioner has no case for interference and a mandamus cannot issue for either of the reliefs claimed.

Immediate consequences for the parties:

The petition is dismissed and the Court made no order as to costs.
The Court observed that the petitioner had become overage for other employment and removal from the school's service might cause hardship; accordingly, the Court invited the petitioner to make a proper representation to the competent authority for sympathetic consideration and possible alternative service. This was an administrative direction of a remedial nature rather than a legal mandate validating the disputed appointment.

Broader implications: The decision enforces the principle that statutory rules governing appointments cannot be subverted by administrative practice or subsequent acknowledgments; administrative drift or acceptance of services does not create a valid appointment where the statute reserves appointment power to specified authorities. The opinion does not purport to lay down new law but applies established Supreme Court authority to the facts; no new precedent was announced by this judgment.

Petition dismissed.

Show all summary ...

1. The petitioner has moved this Court under Article 226 of the Constitution of India for a Writ of Mandamus to direct the respondents to pay the arrears of salary with effect from 21-5-1977, on account of the services rendered by him in the Balika Uchcha Vidyalaya, Bariarpur, Monghyr, and for a further direction to confirm and approve his appointment as an Assistant Teacher in the said School with effect from the date of his appointment by the Secretary of the Managing Committee of the School.

2. The petitioner applied, as stated in the writ application, in response to an advertisement dated 28-5-1976, published in the local newspapers for the post of a permanent History Teacher in the Balika Uchcha Vidyalaya, Bariarpur, Monghyr. A copy of his application for the said post advertised on 28-5-1976 is Annexure 1 to the writ application. According to him he graduated with History Hons, in the year 1968 from the Bhagalpur University and did his Teachers Training course from the said University in the year 1970. He was fully qualified for the post of a teacher in the School. Accordingly, he was called for interview and the Secretary of the Managing Committee of the School gave to him a letter of appointment against a sanctioned post of the School on the Kothari scale of pay. He joined the School on 21-6-1976. The Managing Committee of the School approved his appointment at its meeting dated 30th May, 1976 — vide its resolution No. 3. Yet at another meeting dated 4-11-1977 the Managing Committee regularised the petitioner's appointment as the permanent teacher of the School. A recommendation was made to the Board of Secondary Education for payment of his salary as per rules admissible under the Kothari Commission which was being paid to other efficient teachers of different schools. The Director of the Board of the Secondary Education examined all the records of the petitioner and held in his favour. The Chairman of the Board communicated his decision to the District Inspectress of Schools (the respondent No. 5) and on 5-10-1977 an office order was issued by the respondent No. 5 to the effect that the provisional appointment of the petitioner in the school vide Resolution No. 3 dated 31-5-1976 of the Managing Committee of the School was approved and the petitioner would be entitled to the scale of pay of a teacher as recommended by the Kothari Commission. The said letter of approval is Annexure 3 to the writ application.

3. The petitioner has alleged that he was paid a sum of Rs. 3,340/- towards his salary in the month of Nov., 1977, against the claim for the period from 21-6-1976 to 20-5-1977 and for the rest of his claims he was asked to wait. The petitioner, however, continued his teaching work in the school, as usual, although no emoluments were paid to him. He made several requests for the payment of the arrears as also the current salary but to no effect.

4. On 30-5-1973 he sent a representation to the respondent No. 1 (the Special Secretary, Department of Education, Government of Bihar) stating therein that he was not paid his salary from June, 1977 and his current salary has also not been paid to him. He made yet another representation on 15-8-1978 and also personally met the respondent No. 1 and acquainted him with the facts of the case. On 20-10-1978 he filed a fresh representation but no heed, however, was paid by the respondents to any of the representations by the petitioner. The petitioner met the Special Secretary (the respondent No. 1) on 1-12-1978 and requested him to take necessary action. He also met the Chairman of the Board of the Secondary Education on 2-12-1978, who told him that necessary orders would be passed in his case in due course. When nothing, however, materialised, the petitioner filed yet another application addressed to the Secretary of the School on 11-1-1979 for payment of his salary. The Secretary of the school forwarded the application of the petitioner to the Board of Secondary Education for the needful. He waited for some action upon his representation but in vain. He came to Patna in the month of August, 1979 to know the position and met the respondents 1, 2 and 3, but with no tangible result. On 30-11-1979 he again sent a letter of reminder to the respondent No. 3 giving all the details of all the scales but received no reply to this representation as well.

5. On 25-11-1980, an Ordinance was promulgated to the effect that the non-Government High Schools were taken over by the State Government with effect from 2-10-1980. Petitioner's school was also taken over under the said Ordinance. Even after the take over of the school the petitioner continued his efforts and in June, 1980, he filed an application before the respondent No. 2. On 6-3-1981 and 27-3-1981 he sent further representations to the respondent No. 2 on the subject. All the efforts of the petitioner, however, failed to bring any result in his favour.

6. In support of his allegation that the petitioner had always been teaching in the school he has brought on the record a recommendation/permission granted to him by the Sub-divisional Education Officer, Monghyr, which is contained in Annexure 13 of the writ application. This shows that the petitioner who wanted to improve his educational qualification applied to the Sub-divisional Education Officer for permission and the Sub-divisional Education Officer granted permission to him to appear in the M.A examination. The story of the petitioner's making representations did not end, however, and even in the year 1981 he made representations on 22-10-1981, 29-11-1981 and 2-12-1981. He has made a grievance before this Court that despite a valid appointment in his favour as an Assistant Teacher of the School and despite the fact that he has been continuously teaching in the School, he has not been paid his emoluments. He has also alternatively made a grievance that after the take over the respondents apparently committed an error in not acknowledging the appointment of the petitioner as a teacher in the school from before the take over and in not approving his appointment after the take over as required under the law.

7. It is, undoubtedly, a case in which people, to quote the words of Mr. Justice V.R Krishna Iyer, as he then was, ‘insufficiently aware of the kaleidoscopic legislative changes and crucial statutory consequences on the one hand and curiously indifferent to their own embarrassingly ambivalent dealings seemingly legitimating the permanent status’ of a teacher have created an impression that the petitioner got a valid appointment as a teacher in the school. It is evidently a case of complete ignorance of law in granting to the petitioner a certain appointment, provisional though it was, by the Secretary of the Managing Committee of the school. He (the Secretary) was not competent to give any appointment to the petitioner in May, 1976. The law had undergone a drastic change by then. Even the Managing Committee of the School had been divested of the powers to make the appointments of teachers. Various resolutions of the Managing Committee of the School, as alleged by file petitioner, regularising his provisional appointment and giving to him a substantive appointment, are adopted in violation of or in ignorance of the law in force. In different approach in the matter of appointment of a teacher is reflected in the conduct of the Managing Committee and/or the Secretary of the school. Same is the position when one looks to the order of the Chairman of the Board, if he really passed the order as alleged by the petitioner, and the communication of the Inspectress of Schools, as contained in Annexure 3. At the time of the petitioner's appointment the law in force was one as contained in the Ordinance promulgated on 22-4-1976 (The Bihar Madhyamic Shiksha Board, Dwitiya Adhyadesh, 1976). Chapter VI of the Ordinance provided a complete procedure for the appointment of a teacher repealing the earlier laws on the subject. The Managing Committee of the School and/or the Secretary of the School figured nowhere in the law as competent authorities to make the appointments except under sub-sec. (5) of S. 44 of the Ordinance, where a provision was made for the appointment to be made by the Managing Committee of the School for a period of six months only and that also with the prior approval of the Sub-divisional Education Officer. In the instant case, it is obvious that the petitioner was not given his initial appointment by the Managing Committee. It (the managing committee) came, however, to consider the petitioner's case for regularising his appointment made by the Secretary of the Managing Committee at its meeting held on 31-5-1976. This resolution of the Managing Committee finds mention in the so-called approval order of the Inspectress of Schools, as contained in Annexure 3 to the writ application. It is obvious that even the Managing Committee of the School could not make the appointment even for a period of six months without the prior approval of the Sub-divisional Education Officer. Learned counsel for the petitioner at this stage has tried to suggest that the Sub-divisional Education Officer was the competent authority for the boys schools only and not for the girls school and for that purpose he drew my attention to the 1972 Rules where certain provisions in this regard were made. It does without saying that by the provisions made under the Ordinance for the appointment of a teacher in a High School, the provisions, as contained in the rules of 1972, stood repealed. Even assuming for a moment that the Inspectress of the Schools still continued to be the competent authority, a post-approval cannot be taken to be an ex facto approval. Thus, there has been no valid approval to the appointment of the petitioner by any competent authority.

8. Learned counsel for the petitioner has made, if I may say so with respect, a very sincere argument based upon the facts that all concerned accepted that the petitioner was a teacher appointed in the school in June, 1976 and they took work from him, and always acknowledged him as the actual teacher of the school. He has submitted that having taken work from him, they are liable to pay to the petitioner his emoluments. There is no reason for them now not to accept the petitioner's claim that he was one already appointed in the school from before the take over of the school. This argument is, undoubtedly, very attractive but is in the teeth of a direct authority of the Supreme Court of India in the case of University of Kashmir v. Dr. Mohd. Yasin, (AIR 1974 SC 238). In the case before the Supreme Court, the Vice Chancellor, exercising the powers vested in him appointed a teacher in the service of the University. The Vice-Chancellor could make the appointment only for a period of six months. However, even after the expiry of the period of six months, the teacher concerned was continued and he worked in the capacity of a teacher by virtue of the appointment given to him by the Vice-Chancellor of the University. An argument, similar to one advanced before me, was made before the Supreme Court and the Court answered the contention by holding, “when a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement dehors the provisions and power under the Act would be subversive of the statutory scheme regarding appointment of officers and cannot be countenanced by the Court”. The Supreme Court noticed that the power to make appointment of a teacher was vested in the University Council only and the manner of its exercise had been carefully regulated by the statutes. The Vice-Chancellor's administrative action in the matter was a drift. The Supreme Court held that on such administrative drift theory of factum valet could not be applied.

9. I have noticed above the statutory provisions as contained in the Ordinance in force (which provisions were continued under successive Ordinances as also under the 1976 Act until repealed by the take over Ordinance in Sept., 1980) did not give any power either to the Secretary or the Managing Committee of the School to make the appointment of a teacher in a High School. I have also noticed that there were orders made by the Board and/or Inspectress of Schools and other Officers of the Department of Education which were glaring examples of ignorance of law. The petitioner undoubtedly has laboured under the impression that he was appointed as an Assistant Teacher in the School by the competent authority and his appointment was approved by the competent authority but as pointed out in the case of University of Kashmir, the appointment of the petitioner was always stricken by the vice of the statutory violation which cannot be cured by the acts of administrative drifts.

10. On the facts and in the circumstances of the case, I am of the view that the petitioner has got no case for interference by this Court and a mandamus cannot issue for either of the reliefs claimed by him in the present writ application. This application, therefore, must fail.

11. In the result, this application is dismissed. On the facts and in the circumstances of the case, there shall be no order as to costs.

12. Learned counsel for the petitioner, however, has stated that the petitioner has become overage for any other employment. His removal from the service of the school shall result in hardship which may cause starvation to him and his family. If the petitioner makes a proper representation before the competent authority, he may be given sympathetic considerations and if possible may be given any alternative service.