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Case Number

3232 of 1982

Attorney(S)

Rajendra Prasad Singh
Poonam Singh
Jawahar Prasad
I.P.Singh
Ganesh Prasad Singh
Bipin Bihari Sinha
Bijay Kumar Pandey
Anil Kumar Upadhya

Judges

Mr. Justice V.P. Singh

Acts

section 4 (2)

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Smart Summary

Judicial Summary — U.P. Singh J.

Factual and Procedural Background

This writ application challenges an impugned government notification dated 30-7-1982 (referred to in the record as annexure-4 and annexure-8 in places) by which, after the government recognised and took over a school (a kanya uchch vidyalaya at Obra), a list of approved assistant teachers was published that did not include the petitioners.

The school began functioning on 23 January 1978. Respondents 9 and 10 were the secretary and president respectively. The three petitioners had been appointed and were working as assistant teachers prior to or around 1979–1980:

Petitioner No.1: appointed by letter dated 25-7-1980, joined in August 1980; attended a training course from 3-8-1981 to 24-4-1982 and rejoined on 26-4-1982.
Petitioner No.2: appointed by letter dated 30-7-1979, joined in August 1979; later completed training in 1982–83 (result published in 1985).
Petitioner No.3: appointed in March 1979, joined in April 1979; passed the teachers' training examination in 1982 from Ranchi University.

After recognition and taking over of the school by government action on 30-7-1982, six assistant teachers were included in the published list; the petitioners' names were excluded. The petitioners complained that they were eligible, had been working prior to the notification, and were excluded arbitrarily without being given an opportunity, thereby violating principles of natural justice. They sought a writ directing inclusion of their names in the approved list.

The application was admitted for hearing and, by an earlier order dated 6-9-1982, the petitioners were directed to be retained in service; they continued to draw salary pending final disposal. The present opinion disposes of the substantive challenge and directs specific relief.

Legal Issues Presented

Whether the impugned notification excluding the petitioners from the list of approved teachers is valid, given that they were working in the school prior to the taking over and had been appointed earlier.
Whether the government complied with section 3 of the Bihar Non-Government Secondary School (Management and Taking Over) Ordinance, 1981 — specifically, whether a committee inquiry into the suitability of working teachers was carried out as required, and if not, whether that omission vitiates the notification.
Whether section 4(2) of the Ordinance, which deems officers/teachers of a taken-over school to have been transferred to and become employees of the State Government, entitles the petitioners to be treated as absorbed employees despite any absence of qualification at the time of the special board's report.
Whether a previously enunciated judicial proposition (that eligibility is determined as of the date of the special board's report and that an untrained teacher has no vested right to be re-examined after acquiring qualifications) governs this case in the face of subsequent government policy/circulars.

Arguments of the Parties

Petitioners' Arguments

The petitioners had valid appointments as assistant teachers and were working in the school long before the government's notification of 30-7-1982.
No committee inquiry (as required by section 3 of the Ordinance) was conducted to assess suitability before the taking over; thus the notification is in violation of section 3.
Section 4(2) of the Ordinance should operate to deem them transferred and absorbed into government service since they were holding posts when the school was taken over.
The special board's report excluded them only on the ground that they were untrained at the relevant time; however, government policy expressed in a circular dated 21-12-1982 (annexure-9, clause 'jha') provides for provisional recognition of teachers under training (within sanctioned strength), payment of stipend until results are declared, and seniority from date of passing — this policy supports their inclusion since they later obtained the requisite training qualifications.
They were retained in service pursuant to an interim order of the court (6-9-1982) and have been continuously serving and drawing salary since then.

Respondents' Position (as reflected in the record)

There is no specific counter-affidavit addressing the individual factual assertions about these petitioners; the official response contains a general statement that an inquiry by a committee was not relevant.
The special board that inspected the school omitted the petitioners from its report on the ground that they were untrained at the time of inspection — this is the factual basis for exclusion in the official record.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Naresh Prasad Nirala v. State of Bihar and Others, (1987 PLJR 341 : 1987 BLJ 678)	The Full Bench held that an untrained teacher on the date of the special board's report cannot claim absorption into government service by subsequently acquiring qualifications; the crucial date for eligibility is the date of the special board's report and an unqualified teacher has no vested right to be re-examined after obtaining qualifications.	The Court acknowledged this proposition but distinguished it on the ground that a government policy/circular dated 21-12-1982 (annexure-9) — apparently not considered by the Full Bench — allowed provisional recognition of teachers under training (subject to conditions). Given that the petitioners subsequently acquired the training qualifications and were retained in service by interim order, the Court declined to apply the Full Bench's rule to defeat the petitioners' claims and directed their inclusion in the approved list.

Court's Reasoning and Analysis

The Court's analysis proceeds along a sequence of factual and legal observations, applied narrowly to the record:

Admitted factual position: There is no categorical denial in the record that the petitioners were appointed and served as assistant teachers prior to the government's notification. The absence of a specific counter-affidavit addressing their cases means the factual assertions that they were on the working rolls and had been performing duties were taken as admitted for present purposes.
Statutory framework: Section 3 of the Bihar Non-Government Secondary School (Management and Taking Over) Ordinance, 1981 requires appointment of a committee by the government to enquire into the suitability of working teachers before taking over management. Section 4(2) provides that persons holding posts in a school taken over by the State are deemed to have been transferred to and to have become employees of the State Government. The petitioners invoked both provisions to challenge the omission.
Ground for exclusion by the special board: The report prepared on inspection omitted the petitioners' names on the sole stated ground that they were untrained at the relevant time. The Court observes that this ground is refuted by the fact that the petitioners subsequently obtained training qualifications.
Relevant administrative policy: The Court relied on a government circular dated 21-12-1982 (annexure-9), clause 'jha', which contemplates provisional recognition of teachers under training (if they fall within sanctioned strength), payment of a stipend until result publication, automatic termination if they fail the training examination, and seniority to commence from the date of passing. The Court also noted a subsequent circular dated 15-6-1988 that reiterates consideration for absorption of untrained teachers employed on the date of inspection whose services were not recognised at that time.
Interaction with precedent: The Court recognized the Full Bench ruling in Ram Naresh Prasad Nirala that eligibility determination is to be made as of the date of the special board's report and that subsequent acquisition of qualifications generally will not create a vested right. However, the Court distinguished that decision because the administrative policy in annexure-9 (which favors provisional recognition of trainees) was apparently not drawn to the Full Bench's attention and because the petitioners had actually acquired the requisite qualifications after the report.
Interim order and continuity in service: The Court took into account that, after admission of the writ, an interim order (dated 6-9-1982) directed that the petitioners be retained in service; they continued to serve and to draw salary, which the Court treated as relevant to the equitable disposition of the case.
Relief calibrated to facts: Weighing the admitted facts, the administrative circular, and the subsequent acquisition of qualifications by the petitioners, the Court concluded that excluding them from the approved list was not tenable in the circumstances and directed inclusion of their names in the list of teachers published by the State, while expressly protecting the positions of respondents already included.

Holding and Implications

Holding: The writ application is allowed. The Court directed respondent No.2 to include the petitioners' names in the list of teachers of the school along with the other persons already included in the impugned notification (respondents 6 to 8). The Court made clear that the positions of respondents 6 to 8 will remain unaffected. There will be no order as to costs.

Implications:

Direct effect: The petitioners must be included in the government's published list of approved teachers for the school; their inclusion is to be treated on the same footing as those already listed. The status and appointment of respondents 6–8 are to remain undisturbed.
Procedural/precedential scope: The Court distinguished an earlier Full Bench decision on the specific facts and administrative policy before it; the opinion does not purport to overrule that Full Bench authority generally or to lay down a broad new test beyond the facts of this case. In other words, no sweeping new precedent was announced — the ruling is tied to (a) the admitted factual position, (b) the administrative circular (annexure-9), and (c) the petitioners' subsequent acquisition of required qualifications and continued retention in service pursuant to earlier court direction.

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Shakuntala v. State Of Bihar

U.P.Singh J.:-

(1) By this application the petitioners have challenged the validity of the impugned notification dated 30 - 7 - 1982 contained in annexure - 8 therein the petitioners were not included in the list of approved teachers of kanya uchch vidalaya, obra. It has been fairly pointed out by the learned counsel appearing for the petitioners that he is not seeking any relief against respondents 6 to 8, who have been so appointed under annexure - 4.

(2) The said institution was founded and started functioning with effect from 23rd january, 1978 and respondents 9 to 10 were the secretary and the president of the said vidyalaya. Against the vacancy for the post of assistant teachers,the petitioner no. 1 filed an application and by letter dated 25 - 7 - 1980 she was appointed as assistant teacher and joined the post sometime in august 1980 and since then she has been teaching the students regularly to the satisfaction of the concerned authorities. In between the period 3 - 8 - 1981 to 24 - 4 - 1982 she proceeded for the training course and joined the said vidyalaya on 26 - 4 - 1982. The second petitioner was appointed as assistant teacher by letter dated 30th july 1979 and joined the said post sometime in august 1979 and since then she has been teaching the students. The third petitioner as well joined the post of assistant teacher in the said school in april 1979 pursuant to his appointment in march 79 and since then he has been discharging his duties as an assistant teacher. The petitioner no. 3 also passed the training course in the year 1982 from the ranchi university and petitioner no. 2 after getting permission from the department, completed the training course in the year 1982 - 83 from the magadh university, gaya, and the result was published in the year 1985.

(3) After granting recognition to the said school by notification dated 30 - 7 - 1982, the government took over the management and control of the said vidayalaya and six assistant teachers were appointed vide the impugned notification contained in annexure - 4 but the name of these petitioners in the list of approved teachers were not included. The petitioners then made a representation to respondent no. 9 as to why and under what circumstances they were not so appointed, although they have been working in the said vidyalaya since long even before the publication of the said notification.

(4) The sole grievance of the petitioners is that even though they were eligible to be appointed as assistant teachers, but their names were arbitrarily excluded from the list of working teachers and without affording any opportunity to them, the government notification contained in annexure - 4 was published violating principles of natural justice.

(5) Section 3 of the bihar non - government secondary school (management and taking over) ordinance, 1981 requires that, before the management and control of a school is take over, committee will be appointed by the government, who will enquire about the suitability of the working teachers, clerks and peons to be retained in service. The grievance of the petitioners is that no such enquiry was conducted by any committee before the impugned notification was issued and as such the impugned notification was violative of section 3 of the bihar non - government secondary schools (management and taking over) ordinance, 1981.

(6) The consequence of the said taking over of the institution is provided in section 4 of the ordinance and the relevant section 4 (2) reads as follows: -

"every officer, teacher or other employees holding any office or post in the school take over by the state government shall be deemed to have been transferred to and become an officer, teacher or employee of the state government."

It was thus contended that since the petitioners were working as teachers, before the impugned order was issued, and the same has not been controverted, the exclusion of the petitioner's name is illegal and arbitrary.

(7) There is no counter - affidavit specifically dealing with the case of these petitioners and a general statement has been made that enquiry by a committee was not relevant. There is no categorical denial of the existance of the services of the petitioners in the school in question on which they continued ever since before the impugned notification was issued. Having full qualification of an assistant teacher, they were appointed in the said institution. On further facilities extended to them, they acquired additional qualification by completing the training course. Therefore, in absence of any categorical denial of their assertion made in the writ application, the admitted portion is that they had been regularly appointed as assistant teachers and were serving in the institution over since before the publication of the impugned notification. It is neither alleged nor suggested that these petitioners were either untrained or under - graduate or that they were not on the working roll of the institution when the inspection was conducted sometimes in august 1980. The said committee however, at the time of inspection of the school while considering the feasibility of its being taken over, did not include the names of these petitioners in the report on the sole ground that they were untrained at the relevant time. In order to meet the said ground, my attention has been drawn by the petitioners counsel to a very relevant circular of the government contained in annexure - 9 issued on 21st december, 1982, and reference was made to clause (jha) which deals with the policy regarding recognition of service of the teachers of secondary schools prior to its taking over. Clause 'jha' therein provides that in those schools, which are to be taken over, the recognition of the appointment of teachers under training in the training colleges, recognised by university under the state government, should be given provisionally if that is within the sanctioned strength. In the case of their failure in the training examination, the services of such teachers shall be deemed to be automatically terminated. Till the publication of their result of the training examination, they shall be paid only a stippend of rs. 500/ - per month. Their seniority in the services will, however, be contend from the date of the passing of the training examination. The same policy decision, it is pointed out, has been reiterated in a subsequent circular of the government dated 15 - 6 - 1988 where in the question regarding absorption of those untrained teachers, who were working in the school on the date of inspection and whose services in the school on the date of inspection and whose services were not recognised for one reason or the other, has been considered. In this view the appointment of the petitioners could not be denied on the ground that on the date of making of the report by the special board, the petitioners had not obtained the qualification, namely, that they had not passed the training course. Their right will certainly be not denied since they were within the sanctioned strength and had obtained the qualification after passing the training course even after the report submitted by the special committee the question, regarding absorption of those untrained teachers, who were working in the school on the date of inspection and whose services were not recognised for one reason or the other, had thus been considered by the government and a policy decision as contained in annexure - 9 was taken in this regard.

(8) My attention has been drawn to a full bench decision of this court in the case of ram naresh prasad nirala v. State of bihar and others, (1987 pljr 341 : 1987 blj 678) in which it was held : -

". A teacher who was untrained on the date of the report of the special board under section 3 (3) of the bihar non - government secondary school (taking over the management and control) act, 1981, he cannot claim to be considered for absorption in government service on the ground of having subsequently acquired the requisite qualifications. It was further held that crucial point of time for consideration of eligibility, qualification and suitability of teachers for absorption is the date of the report of the special board, and there is no vested right in an unqualified teacher to have his case re - examined on attaining the requisite qualification."

It appears that a special leave was preferred to the supreme court against the said decision. The appeal was disposed of by the supreme court with the directions that in the facts and circumstances of that case, the respondents shall take the appellant into employment and with this observation the appeal was disposed of.

(9) There is no dispute with the aforesaid proposition laid down by the full bench of this court in the aforesaid case, but the situation becomes different, if one consider the case in the light of the government policy in the circular contained in annexure - 9 dated 21st december, 1982, apparently, the said policy decision of the government contained in annexure - 9 was neither referred to nor the attention of the full bench was drawn.

(10) In the present case, the facts are not disputed, that the petitioners were working in the said school having acquired the requisite qualification. After the submission of the report by the special board, they passed the teachers training examination although they were not given the training course before the actual take over. From the order of this court dated 6 - 9 - 1982 it appears that while this application was admitted for hearing the petitioners were directed to be retrained in the services as teachers in the school and as such they have continued and are getting salary as assistant teacher in the said school till today.

(11) Considering the facts enumerated above, in regard to the exclusion of the names of the petitioners from annexure - 4, respondent no. 2 is directed to include the name of the petitioners in the list of teachers of the school like other respondents i e. Respondents 6 to and who have been included in annexure - 4. It is made clear that respondent nos. 6 to 8 are oat to be disturbed and their position shall remain unaffected by this order.

(12) In the result, this application is allowed but there will be no order as to costs. Writ application allowed.

Shakuntala v. State Of Bihar

Judicial Summary — U.P. Singh J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' Position (as reflected in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Shakuntala v. State Of Bihar

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