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Case Number

Civil Writ Jurisdiction Case No. 8408 of 1992

Advocates

Rani Pravesh Sharma
R.A.Singh

Judges

S.B Sinha
I.P Singh, JJ.

Acts

1980. Clause 21 of this Ordinance repeals Act 25 of 1976,
provisions of the statutory Rules or Article 16
ARTICLE 309 CONSTITUTION OF INDIA
Rules. Rule 21 of the Rules
Rule 20(3) of the Rules,
Rules 3, 4, 6 and 7
Control) Act, 1982
Rule 7(ka)(1)
Rule 6(3)

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Smart Summary

Judgment Summary (S. B. Sinha, J. and I. P. Singh, J.)

Factual and Procedural Background

The petitioner sought issuance of a writ to quash an order (memo No. 1703 dated 18.7.1992, as initially described) rejecting her claim to the post of Head Mistress of Jawahar Kanya Uchch Vidyalaya, Jhing Nagar, Bihar Sharif, Nalanda, and for a writ of mandamus directing respondents to regularise her services as Head Mistress. The school was established in 1972; the petitioner was appointed Assistant Teacher on 1.1.1972. The school received temporary recognition earlier and permanent recognition on 1.9.1979. Management was taken over under the Bihar Non-Government Secondary Education (Taking Over of Management and Control) Act (referred to in the opinion) with effect from 1.9.1979.

Procedurally, the petitioner had been directed to act as Acting Headmistress by order dated 16.8.1980 and to continue to act as Headmistress by order dated 30.12.1980 until permanent appointment was made. The petitioner applied on or about 6.6.1985 for appointment to the post of Headmistress; service records and reports were exchanged between officials, and the petitioner's claim was ultimately rejected by an impugned order referred to as dated 28.7.1992 (Annexure-10). A counter affidavit was filed by the respondents explaining their position.

Legal Issues Presented

Whether the petitioner ought to be treated as a "founder Headmistress" for the purpose of appointment/regularisation under the Government circulars and rules in force.
Whether the post of Headmistress in the relevant school had fallen vacant prior to 2.10.1980 (the date of nationalisation) so as to permit promotion treating the school as an independent unit under pre-existing circulars.
Whether regularisation (absorption) of the petitioner into the post of Headmistress is permissible when the terms of service are governed by statutory rules and the Constitution (notably Article 309 and Article 16 implications noted by the court).
Whether the petitioner's claim should be considered under the statutory Rules of 1983 (and their amendments) applicable to nationalised secondary schools.

Arguments of the Parties

Petitioner's Arguments

The petitioner (through Mr. Ram Pravesh Sharma) argued that she had been acting as Headmistress in-charge for a long period and therefore her services ought to be regularised.
Counsel for the petitioner relied strongly on the Supreme Court decision in N.S.K. Nayar v. Union of India (1992 Supp (2) SCC 508 : AIR 1992 S.C. 1574) to support the contention that prolonged officiating service should be given effect to for regularisation/seniority purposes.

Respondents' Arguments

The respondents, via counter affidavit, stated the school was opened and partially recognised from 1.5.1978 and explained that the petitioner's claim was rejected on the ground that she did not fulfill the criteria for appointment as a founder Headmaster because she lacked the requisite experience of seven years from the date of recognition of the school.
The counter affidavit did not, according to the court, take into account Circular No. 1072 dated 9.11.1987; nevertheless the respondents maintained that statutory rules govern recruitment and promotion in nationalised schools.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
N.S.K. Nayar v. Union of India, 1992 Supp (2) SCC 508 : AIR 1992 S.C. 1574	The Supreme Court held that prolonged temporary/officiating appointments (10–15 years) cannot be treated as purely temporary and addressed seniority in favour of promotee officers who worked in the senior time scale continuously for five years; it directed limited relief and laid down protective directions regarding retirees and reversion of direct recruits.	The petitioner relied on this decision. The court considered it but distinguished it: the decision turned on interpretation of the particular statutory rules applicable in that service context, and the scheme there was different from the 1983 Rules governing nationalised secondary schools. Hence Nayar did not afford the petitioner the relief she sought under the 1983 Rules.
Ram Ordar Ojha v. State of Bihar, 1992 (1) PLJR 722	Full Bench decision declaring the 1983 Rules (framed under the Bihar Act relating to nationalised secondary schools) intra vires.	The court relied on this authority to confirm the validity of the 1983 Rules and to support the view that appointment and promotion must be governed by those Rules.
Satydeo Prasad Verma v. State of Bihar, CWJC No. 2390 of 1989	The decision (by a Bench of this Court) considered the scheme of the 1983 Rules.	The court noted that the scheme of the 1983 Rules has been considered in that case (a Bench of which included one of the present judges) and relied on the prior treatment of the statutory scheme in adjudicating the present matter.

Court's Reasoning and Analysis

The court's analysis proceeded by mapping the statutory and regulatory framework and then applying facts to that framework:

Statutory framework and nationalisation: The court recited the promulgation of the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance (1980), subsequent enactment as the Act (referred to as Bihar Act 33 of 1982) and the power to frame Rules under Section 15. It observed that nationalisation took effect from 2.10.1980 and that Section 4(3) of the Act preserved existing terms and conditions (except superannuation) until lawfully altered.
Administrative circulars and Rules: The court outlined the Government Circular (memo no. 510 dated 20.11.1981) which treated vacancies existing before nationalisation (2.10.1980) as fillable by promotion from teachers of the school treating the school as an independent unit. It then described the 1983 Rules (effective 26.9.1983) that provided a state cadre for Headmasters, specified promotion/direct appointment proportions (Rule 7(ka)(1) — 80% by promotion and 20% by direct appointment), and empowered the State to issue notifications deemed part of the Rules (Rule 20(3)).
Interaction of circulars and Rules: The State issued a notification on 6.7.1983 preserving Government Order No. 510 only until disposal of pending promotions that fell vacant prior to 2.10.1980, and that notification is to be deemed part of the Rules. Thus, vacancies arising before 2.10.1980 could be processed under the older administrative approach only to the extent preserved, but thereafter the 1983 Rules govern filling posts.
Application to facts — vacancy date: The court examined whether the post of Headmistress fell vacant prior to 2.10.1980. The court found that although the incumbent (Sabitri Devi / Savitri Kumari) went on leave from 16.8.1980 and the petitioner acted in charge thereafter, there was no conclusive disciplinary termination of the incumbent's services on the record. So long as the incumbent had not been terminated, the post did not fall vacant prior to 2.10.1980. Consequently the school could not be treated as an independent unit for the purposes of filling a founder Headmaster vacancy predating nationalisation.
On regularisation and statutory rules: The court emphasized the legal principle that where conditions of service are governed by statute or statutory rules, regularisation by absorption would violate those rules and also engage Article 309 and Article 16 of the Constitution; regularisation cannot be a mode of recruitment inconsistent with statutory rules.
Distinction from N.S.K. Nayar: Although the petitioner relied on N.S.K. Nayar, the court explained that Nayar turned on a different statutory scheme (telegraph engineering service rules) and the Supreme Court in Nayar interpreted rules particular to that service. Because the 1983 Rules for nationalised secondary schools have a different scheme, Nayar's principle could not be applied to grant the petitioner relief.
Procedural particulars and remittal: The court noted the petitioner had not specified when she acquired requisite qualifications for founder Headmaster treatment. The court also observed the counter affidavit had not taken into account Circular No. 1072 dated 9.11.1987 (which amended the 20.11.1981 order). On that basis the court stated the petitioner's claim should nevertheless be considered if the post had fallen vacant (but in conformity with the 1983 Rules).
Conclusion of analysis: Because the post did not fall vacant prior to 2.10.1980, the vacancy can be filled only by following the 1983 Rules (as amended), and therefore the question of regularisation of the petitioner does not arise. The court directed that the petitioner's claim, if considered, should be considered along with other eligible candidates strictly in accordance with the 1983 Rules.

Holding and Implications

DISMISSED

Holding (direct ruling): The writ petition seeking quashing of the impugned order and regularisation of the petitioner as Headmistress is dismissed. The court held that the post did not fall vacant prior to nationalisation (2.10.1980) for reasons stated in the judgment, and that the matter of filling the post must be governed by the statutory 1983 Rules (as amended), which do not permit regularisation by absorption inconsistent with those Rules.

Implications:

The immediate effect is that the petitioner is not regularised in the post of Headmistress by this writ; her application is dismissed without any order as to costs.
The court directed that the petitioner's claim (if considered by authorities) must be considered along with all other eligible candidates strictly in accordance with the 1983 Rules and related statutory provisions and notifications.
No new broader precedent altering the statutory recruitment scheme was laid down by this judgment; the court reaffirmed that statutory rules govern recruitment and promotions in nationalised schools and relied on earlier authorities (including a full bench decision upholding the Rules) in reaching its conclusion.

Note: This summary is limited to and derived exclusively from the content of the provided opinion and does not add information beyond what the opinion expressly contains.

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Smt. Madhuri Kumari v. The State Of Bihar & Other

S.B Sinha, J.:— In this application the petitioner has sought for issuance of an appropriate writ for quashing an order contained in memo No. 1703 dated 18.7.1992 whereby her claim for the post of Head Mistress of Jawahar Kanya Uchch Vidyalaya, Jhing Nagar, Bihar Sharif, Nalanda, has been rejected and also for issuance of a writ of mandamus commanding upon the respondents to regularise her services as Head Mistress in the aforementioned school.

2. The fact of the matter lies in a very narrow compass. The Jawahar Kanya Uchch Vidyalaya was established in the year 1972. The petitioner was appointed as an Assistant Teacher on 1.1.1972 The said school has been temporarily recognised by the Secondary School Examination Board and the permanent recognition was therefor granted on 1.9.1979 The management of the said school in terms of the provisions of the Bihar Non-Government Secondary Education (Taking Over of Management and Control) Act, 1982 has been taken over with effect from 1.9.1979

3. According to the petitioner, one Smt. Savitri Kumari was the Incharge Headmistress of the said school. The petitioner was therefore directed to act as Acting Headmistress by an order dated 16.8.1980 as contained in Annexure-3 to the writ application.

4. By an order dated 30.12.1980 as contained in Annexure-4 to the writ application, the petitioner was directed to continue to act as Headmistress of the said school till permanent appointment of the Head Mistress is made therein.

5. On or about 6.6.1985 the petitioner filed an application before respondent No. 4 for appointing her on the post of Headmistress of the said School (Annexure-5). The District Education Officer, Nalanda, also submitted a report to respondent No. 4 recommending the case of the petitioner for appointing her as Acting Headmistress. Thereafter the service record of the petitioner and other eligible teachers were called for which had been sent to respondent No. 4 by respondent No. 3 by his letter dated 22.11.1991 (Annexure-9).

6. By reason of the impugned order dated 28.7.1992 as contained in Annexure-10 to the writ application the petitioner's claim has been rejected.

7. In this case a counter affidavit has been filed on behalf of the respondents. In the said counter affidavit it has been stated that the school in question was opened and partially recognised from 1.5.1978

8. According to the respondents the claim of the petitioner was rejected on the ground that she did not fulfil the criteria for appointment as founder Headmaster as she did not have the requisite experience of seven years from the date of recognition of the said school.

9. Mr. Ram Pravesh Sharma, learned counsel appearing on behalf of the petitioner has raised a short question in support of this application.

10. The learned counsel submitted that the petitioner has been continuing to act as Headmistress incharge of the School in question for a long time and as such there is absolutely no reason as to why her services could not be regularised.

11. The learned counsel in support of this contention has strongly relied upon a decision of the Supreme court of India in N.S.K Nayar v. Union of India reported in 1992 Supp (2) SCC 508 : AIR 1992 S.C 1574.

12. In this case the services of the teaching and non-teaching staff working in the said school had been taken over with effect from 1.9.1979 Admittedly at the material time Shrimati Sabitri Kumari was the Incharge Headmistress and she went on leave with effect from 16.8.1980

13. Although according to the petitioner, the said Srimati Sabitri Devi had been placed under suspension, it is not known as to what order has been passed in her case in the disciplinary proceeding against her. So long the aforementioned Sabitri Devi's service had not been terminated, the post of Headmistress of the said school did not fall vacant. It is, therefore, not a case where the post of Headmaster of the school fall vacant prior to 2.10.1980 In this view of the matter, therefore, the school cannot be treated as an unit for the purpose of appointment to the post of a Headmaster.

14. Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance 1980 (ordinance No. 146 of 1980) was promulgated by the Government on 11th August, 1980. Clause 21 of this Ordinance repeals Act 25 of 1976, and pursuant to Clause 3(1) thereto, the Non-Government secondary Schools, subject to certain excepted classes, were nationalised by the Government with effect from 2nd October, 1980. After repromulgations of the said Ordinance containing identical provisions, the same was enacted as Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 (Bihar Act 33 of 1982, hereinafter as the Act only). Section 4(3) of the Act, inter alia, provides that except the age of superannuation of the Headmasters, teachers and other employee of the schools taken over by the State Government which shall be 58 years, other terms and conditions of their service shall continue to be the same as these were before the taking over of the management and control of the schools until any alteration is made by the State Government in the prescribed manner. Section 2(k) of the Act defines ‘prescribed’ to mean prescribed by the Act or the Rules framed thereunder. The power to frame Rules is provided under Section 15 of the Act. Section 16 of the Act provides that if any difficulty arises in giving effect to the provisions of the Act or the rules framed thereunder, the State Government may pass such order as it appears to be necessary for the purpose of removing the difficulty. Similar were the provision under the preceding Ordinances.

15. The State Government purporting to exercise its power under the provisions of the Act, issued a Circular contained in memo no. 510 dated 20th November, 1981, in relation to the promotion to the post of Headmaster in the nationalised schools. This circular, inter alia, contemplates that in the nationalised secondary schools, the vacant post of the Headmasters existing from before the date nationalisation i.e 2.10.1980 should be filled up by promotion from amongst the teachers o the school in question having the requisite eligiblity and fitness treating the school as ai independent unit. It also provides that so far as the vacancy which fell on 2.10.1980 o thereafter, the promotion to the post of Head master should be made in accordance with the rules after preparing a cadre of the teacher and their seniority list.

16. Pursuant to the powers under section 15 of the Act, the State Government framed Rules, which as stated above, came into fore on 26.9.1983 In these rules provisions have been made in respect of filling up of the post of the Headmaster by way of promotion a well as by direct appointment. Rules 3, 4, 6 and 7 are relevant for the purpose of this case.

17. As per Rule 6(3) there will be a State cadre of Headmaster and under Rule 7(ka)(1) 80% of the vacancies on the post of Head masters are to be filled up by promotion and 20% by direct appointment, keeping in view the eligibility and the procedures laid down in this regard under the Rules. Under Rule 20(3), the State Government has been em powered to issue explanation/order b notification, which will be deemed to be par of the Rules. Rule 21 of the Rules having some material bearing on the issues involve reads thus:

“21. Repeal and saving. — Prior to the enforcement of these Rules, any Rules made on the matter concerning these Rules by the dissolved Board of Secondary Education or by the State Government or any order issued with respect thereto, shall be deemed to have been repealed from the date these rules came in force.

(2) Notwithstanding such repeal, anything done or any action taken in exercise of any power conferred by or under the said orders shall be deemed to have been done or taken in the exercise of powers conferred by or under these Rules, as if these Rules were in force on the day on which such thing or action was done or taken.”

18. The State Government, in exercise of its power under Rule 20(3) of the Rules, issued a notification dated 6th July, 1983, containing its decision that the Government Order No. 510 dated 20.11.1981 will remain effective till the disposal of the matters pending for promotion to the post of Headmaster, which had fallen vacant prior to 2.10.1980 As provided under the Rules this Government order has to be deemed to be a part of the Rules, itself.

19. In the above back-ground of the legal provisions and the statutory Rules, it has been submitted on behalf of the petitioners that the post of the Headmaster, which had fallen vacant even subsequent to the date of nationalisation and prior to the enforcement of the Rules, has to be filled up from amongst the seniormost eligible teacher of the school by treating the school as an independent unit, in view of the above referred Government Circular dated 25.7.1977 as modified from time to time. As noticed hereinbefore, the claim of the petitioner is that she should have been regularised in the post of Headmistress as she had been working therein for a long time.

20. It is now well known that in a case where the conditions of service are governed by any statute or statutory rules, regularisation in service by way of absorption would be violative of the said Rules as also Article 309 of the Constitution of India. It is now well known that regularisation cannot be a mode of recruitment. Further no recruitment can be made in contravension of the provisions of the statutory Rules or Article 16 of the Constitution.

21. The question as to whether the petitioner should have been treated to be a founder Headmistress is essentially a question which would depend on its determination as to whether the petitioner fulfil the criteria therefor.

22. The petitioner in the writ application had not given the details as to when she acquired the necessary requisite qualifications, for the purpose of considering her case as a founder Headmaster in terms of the circular letter dated 20th November, 1981 as contained in Annexure-B to the Counter Affidavit.

23. However, it appears in the said counter affidavit the State has not taken into consideration the circular No. 1072 dated 9.11.1987, in terms of Clause 2(ga) whereof the Government order 15 dated 20.11.1981 was amended. In our Opinion, therefore, the claim of the petitioner should be considered, if the post of Headmaster had fallen vacant keeping in view the aforementioned circular letters but subject to and in conformity with the statutory rules of 1983.

24. However, as the post of Headmaster did not fall vacant prior to 2.10.1980, the same can now only be filled up in terms of the provisions of 1983 rules as amended in 1988.

25. The matter relating to filling up of the post of Headmistress of the said school should thus be governed by 1983 Rules and thus the question of regularisation of the petitioner therein does not arise.

26. The said rules have been declared intra vires by a full bench of the court in Ram Ordar Ojha v. State of Bihar reported in 1992 (1) PLJR 722.

27. Keeping in view the statutory provisions, there cannot be any doubt that the matter of promotion of the petitioner who is a teacher in a nationalised secondary School has to be considered in terms of the aforementioned Rules and it is for the appropriate authorities of the State of Bihar to take effective steps for filling up of the post by promotion and/or direct appointments in accordance with the statutory provisions as enforced at the time when effective steps had been taken for filling up of those posts.

28. In N.K.S Nayar's case (Supra) upon which strong reliance has been placed by Mr. Sharma, there existed statutory rules for filling up of post in the senior time scale in an officiating capacity to hold charge by promoting the members of Telegraph Engineering Service Class II who were on the approved list for promotion to the Junior time Scale.

29. The Supreme Court having taken into consideration the scheme of the rules held that the intention of the framers of the Rule could not that temporary appointment cannot be permitted to go on for 10 to 15 years as appointment for such a long peried cannot be considered to be purely temporary/officiating or to hold charge and in that situation it was held that seniority would be counted in case of promotee officers who have worked in S.T.S for a continuous period of 5 years.

30. The Supreme court further observed:

“We make it clear that the petitioners or other officers similarly situated who have already retired shall not be entitled to the benefit of this judgment. We further direct that none of the direct recruits who have already been promoted to STS, JAG or SAG shall be reverted as a consequence of this judgment, if necessary the Government shall create supernumerary posts in STS, JAG and SAG to accommodate the petitioner and other officers similarly situated.”

31. It is, therefore, clear that decision was rendered upon interpretation of the relevant rules involved in the said case.

32. In this case, this court is concerned with the statutory rules framed under the Act, the scheme whereof is absolutely different.

33. The scheme of the 1983 Rules has been considered by a Bench of this court of which one of us is a member in Satydeo Prasad Verma v. State of Bihar in CWJC No. 2390 of 1989.

34. For the reasons aforementioned, no relief can be granted to the petitioner in this application.

35. However, it goes without saying that, the claim of the petitioner for appointment in the post of Headmistress should be considered alongwith all other eligible candidates keeping in view the provisions of 1983 Rules as also the observations made hereinbefore. This application is, therefore, dismissed but without any order as to costs.

I.P Singh, J.:— I agree.

Smt. Madhuri Kumari v. The State Of Bihar & Other

Judgment Summary (S. B. Sinha, J. and I. P. Singh, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Madhuri Kumari v. The State Of Bihar & Other

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