Affan Quadri and others vs The State of Jharkhand and others

D.N. Patel

The present writ petition has been preferred against the order, dated 20th August, 2001 (Annexure-2 to the memo of the present petition),

passed by the Secretary, Human; Resources Development Department, State of Jharkhand, Ranchi whereby it has been directed by the

respondents that the services of the present petitioners are to be terminated by the Management-School because they are appointed illegally as

they were untrained, and secondly, for the reason that when they were appointed reappointed (upon getting the B.Ed. qualification) their names,

were not included in the panel prepared by the District Education Establishment Committee. For these two, reasons, a direction was given to the

Management-School to terminate the services of the present petitioners and the petitioners are challenging this order, present by the respondent-

State authorities.

The issue raised in this writ petition to be adjudicated are as under:-

� Whether the respondent-State authorities has power, jurisdiction and authority, to give direction, by subordinate Legislation (i.e. by a Circular,

dated 31st December, 1982, enacted u/s 8 of the Bihar Non-Government Elementary School (taking over of Control) Act, 1976 and that too

making it effective from a retrospective date i.e. from 1st January; 1971) to the Management, (which is alleged to be a minority school), to

terminate the services of teachers, on the ground that when these Teachers were appointed in the year 1978-1979, they were not trained Teachers

as well as they were appointed against in sanctioned post as well as for the reason that their names were not reflected in the list of candidates

prepared by the District Education, Establishment Committee.

Factual Matrix:

� Petitioner No. 1 was appointed as a teacher on 11th February 1979 in Kabiria Urdu Middle School, Zakir Nagar, Mango, Jamshedpur which

was granted recognition by the Government in the year 1968-69, which was extended from time to time and thereafter, it was granted permanent

recognition in the year 1972.

� When the petitioner No. 1 was appointed in the year 1979, he was a graduate in Arts faculty and he cleared or passed Teachers'' Training

Examination (B.Ed.) in the year 1982. The services of the petitioner No. 1 was approved by the Government in the year 1983 in Matriculation

Trained Scale as he has acquired B.Ed. Degree in the year 1982 and in the year 1989 services of the petitioner No. 1 was approved in I.A.

Trained scale.

� Petitioner No. 2 was appointed as a teacher in the aforesaid school on 1st March, 1979 and he cleared his teachers training examination

(B.Ed.) In the year 1988 and the services of petitioner No. 2 was approved with effect from 1st April, 1989.

� Petitioner No. 3 was appointed as a teacher with effect from 8th November, 1979 in the aforesaid school and he has cleared his Teachers

Training examination (B.Ed.) in the year 1987 and he was approved in the services in the Intermediate Arts Trained Scale with effect from 1st

April, 1989.

� Petitioner No. 4 was appointed on 1st August, 1990 and from the very beginning petitioner No. 4 is a Graduate and has cleared her

Teachers'' Training Examination (B.Ed.) and therefore, her service were also approved by the competent authority with effect from the very same

date, i.e., from the date of her appointment, i.e. with effect from 1st August, 1990.

� All these four teachers have served in the aforesaid school honestly, diligently, sincerely and to the satisfaction of the respondents and neither

any notice have been given to them for their work being unsatisfactory nor regarding any other misconduct.

� Petitioners were also paid salary by the Government up to December, 1996 because the school in which they were serving was a minority

aided school.

� Thereafter, the government stopped paying the salary and hence a writ petition, being C.W.J.C. No. 551 of 2001 was preferred by the

present petitioners before this Court for getting salary from January, 1997 onwards. This writ petition was decided by this Court, vide order dated

8th February, 2001, in which the Secretary, Education Department. Govt. of Jharkhand was directed to decide the claim of the petitioners in

accordance with law and to pass a speaking order. The said order is at annexure 1 to the memo of the petition.

� In pursuance or the aforesaid direction, the order, dated 20th August, 2001, was passed by the Secretary, Education Department,

Government of Jharknand, whereby a direction was given by the Government to the Management of the Kabiria Urdu Middle School to terminate

the services of the petitioners. Thus, the petitioners, who preferred the petition to get the salary, got a direction from respondent No. 2 for

termination of their services and hence, the order, dated 20th August, 2001, is under challenge by way of this writ petition.

Arguments canvassed on-behalf of the petitioners:

� As the petitioners were working as teachers since 1978-1979 (sic) the direction given by respondents, in the impugned Order is illegal and

violatile of Article. 30 of the Constitution of India.

� The circular dated 31st December, 1982, bearing instruction No. 3501, relied upon while passing the, impugned order, is absolutely illegal and

could not have been issued u/s 8 of the Bihar Non-Govt. Elementary School (Taking over of Control) Act, 1976 (for the. sake brevity ""The Act,

1976"").

� Assuming without admitting that there is a power with the State Government u/s 8 of The Act, 1976, it can not be applied with retrospective

effect because the petitioners were appointed in the year 1978.-79 and Petitioner No. 4 was appointed and approved in the year 1990, she being

already a graduate and B.Ed Degree holder.

� Section 8 of the Act, 1976 is empowering the government to remove the difficulties. Thus, it is a Henry VIII clause and therefore, the removal

of difficulties clause. can, not be utilized as a substitute for rule making power as has been held in the decision reported in AIR, 1988 Patna, 9

(FB). In the impugned order a departmental instruction dated 31st December, 1982 has been relied upon and looking to this circular it appears

that the same has been enacted u/s 8 of the Act, 1976 and therefore, u/s 8 of the Act, 1976, the State of Government has no power, jurisdiction

and authority to issue the circular dated 31st December 1982 bearing Instruction No. 2501. Similar is the fate of another circular in order dated

4th March, 1993 bearing Govt. resolution No. 709, which is relied upon by the Government. Henry VIII clause and the rule making power are

quite different and one cannot substitute the other.

� Counsel for the petitioners has also pointed out that the Govt. has already approved the Metric Untrained Scale as well as Intermediate

Untrained Scale etc. meaning thereby that if any teacher is appointed without having any B.Ed. Degree or diploma in teacher''s training. then he or

she will be entitled to untrained scale and no sooner a teacher acquires qualification by clearing. Teachers Training Examination, he or she will be

entitled to trained scale which may be a metric trained scale or B.Sc./BA. Trained Scale Thus it implies that initially there can. be a legal and valid

appointment of a teacher even though he was not a trained teacher. In the facts of the present case, it is submitted by the counsel for the petitioners

that all the petitioners have acquired B.Ed. Degree; within a couple of years and they are not seeking even any salary etc, for their initial period in

service in this writ petition. The only reason for passing the impugned order appears to be that when the petitioners have been appointed in the

year 1978-79, they were untrained. This reason is not a valid reason in the eye of law, This alleged circular of 31st December, 1982 can not be

given retrospective effect because petitioners were already appointed in the year 1973-79.

� It is further submitted by the counsel for the petitioners that looking to the impugned order, the second reason given is that only out of the list of

candidates the Govt. has prepared, teachers could have been appointed. This is, prima-facie de hors the law and the provisions of the Act, 1976.

This arbitrariness is reduced in writing by way of circular dated 4th March, 1993 beating Circular No. 709. This circular is equally bad as the

circular dated 31st December, 1982 because this second circular is also issued u/s 8 of the Act 1976 as Section 8 vests power in the Government

to remove the difficulties, like the Henry VIII clause. Under this clause no detailed rule can be framed by the government and that too with

retrospective effect.

� it is further submitted by the counsel for the petitioners that basically, the circular dated 4th March 1993 is a relaxation in the process of

selection of teachers, which was given in the circular dated 31st December, 1982 Earlier circular was also issued under the Henry VIII. clause.

Thus, power to remove the difficulties has been used as power to make the rules In fact section 7 of the Act, 1976 empowers the Govt. to make

the rules and after enacting the rules it shall be laid before the House of the State Legislature as soon as possible, while, it is in session, for a period

of 14 days and in case it is before expiry of the session this type of rules should be laid before the floor of the house immediately when the session

of the House is going on. To avoid this type of process, State Government has adopted a shortcut route and has drafted out a circular dated 31st

December, 1982. bearing instruction No. 2501 (which is it Annexure 10 to the memo of this petition). This is impermissible in the eye of law.

� Counsel for the petitioners submitted.- that same type of. circulars were issued in past also. They are four in number, invoking, the powers

vested in the government u/s 8 of the Act, 1976, All the earlier four circulars were challenged before the Hobble patna High Court. The matter was

referred to a Full Bench and ultimately, all these four circulars. which were issued in exercise of power u/s 8 of the Act, 1976 (which is like Henry

VIII clause) were quashed and set aside in the case of Krishnadeo Misra Vs. State of Bihar and Others,

� Counsel for the petitioners has heavily. relied upon this decision and is also relying upon the following decisions.

i) 1988 PLJR 646

ii) 1992 (2) PLJR 512

iii) N. Ammad Vs. The Manager, Emjay High School and Others, and

iv) (2007) 1 SCC 336, especially paragraph No. 19 thereof, in which general principals relating to establishment and administration of a

Educational institutions by the minorities have been summarized to the effect that minority so loci management has a right to Constitute its own

governing body. Like wise they have their own right to choose the teaching staff, teachers, lecturers principals as well as their non reaching staff;

and such other rights, i.e. to admit the students etc, Counsel for the petitioners submitted that the petitioners worked in aided minority educational

institute and therefore, there is no need to select a teacher from the so called panel of teachers prepared by the government. Such type of

restriction is violatile of Article 30 (1), of the Constitution of India.

� Thus., it is submitted by the counsel for the petitioners that the petitioners., who were working, since 1978-79, were paid salary also and after

being approved, they were paid salary regularly by. the Govt, They were also given Metric Trained scale as well as intermediate Arts Trained

Scale. The petitioners have been paid even the benefits of 5th Pay revision with effect from 13th January, 1996 (as per annexure 9 to the memo of

the petition) and from January 1997 the respondents stopped paying salary and therefore, C.W.J.C. No. 511 of 2001 was instituted, in which a

direction was given to consider the case of the petitioners in accordance with law and thereafter, the impugned, order has been passed for

termination of the services of the petitioners. This impugned order is based upon illegal circulars and even if this circular, dated 31st December,

1982 is legal, the same is not applicable to the petitioners because the petitioners were appointed much earlier in point of time and just for the

purposes of terminating the services of the petitioners, an executive instruction can not be given retrospective effect unless the Act permits. Looking

to the provisions of the Act 1976. it appears that the power u/s 3 of the Act, which empowers the Government only to remove the difficulty, has

been exercised for issuing circular dated 31st December, 1982. From that point of view also the circular is not binding upon the petitioners:-

�Counsel for the petitioners also relied upon a decision repotted in 1988 PLJR 646 paragraph 52 on wards and it has been held in paragraph

62 there of that when a person is validly appointed, he is legally on entitled to receive the salary, Such a right to receive salary tantamount to right

to bold property and this is falling within the, Article 300-. A of the Constitution of India and therefore executive instruction given by way of the

circular dated 31st December 1982 assuming without admitting that it is issued under article 162 of the Constitution of India (in fact it is issued u/s

8 of the Act, 1976, which is absolute use of powers by the State Government), is always subject to Article 300- A of the Constitution of India and

therefore, the accrued or vested right in the petitioners under Article 300 A can not be taken away with retrospective effect because as per the

circular, those teachers, who were appointed on 1st January 1971, who were untrained, have, no right to continue in their services (as per

paragraph,. 10 of the impugned order at annexure 2 to the memo of the petition). It is submitted by the counsel for the petitioners that this logic is

itself illegal because executive or subordinate legislation can not be given retrospective effect, except where the specific powers should be

conferred under the statute and the provisions of the Act 1976. No such powers have been conferred upon the respondents to issue executive

instructions and that too u/s 8 of the Act, 1976, which is like Henry VIII clause with retrospective effect and hence also the impugned order at

annexure 2 deserves to be quashed and set aside.

� It is further submitted by the counsel for the petitioners that as stay has been granted by this Court, petitioners are working as teachers, but,

the respondents are not even paying the salary.

5- Arguments canvassed on behalf of respondent State

� Counsel for the State submitted that the petitioners appointment was illegal and hence a direction has been given by the impugned order, dated

20th August, 2001 (annexure 2) to terminate their services Those who were appointed illegally, have no right to continue in their services.

� As per circular dated 31st December, 1982, which is at annexure 10 to the memo of the petition, the person who has not obtained Teacher

Training certificate or B.Ed. degree is illegally appointed as a teacher Admittedly, the petitioner No. 1, 2 and 3 were not B.Ed. Degree holders and

therefore, their appointments were illegal as on the date of the appointment.

� It is further submitted by the counsel for. the. State that as per circular dated 31st December, 1982, the respondent No. 6-School ought to

have been chosen a teacher from a panel prepared by the District Education Establishment Committee. Petitioners were not found in the list panel

so prepared by respondents and hence their appointment is, illegal and therefore, rightly a direction has been given by the Secretary, Human

Resources Development department by the impugned order to respondent No. 6 to terminate the services of the petitioners.

� Counsel for the State has further submitted that the petitioners were not appointed against the sanctioned strength and therefore also their

services could not have been continued by respondent No. 6 and hence the direction to terminate their services is absolutely just, proper, correct

and legal.

� Counsel for the State has further submitted that respondent State has never declared Kabiria Urdu Middle School, Zakir Nagar; Mango,

Jamshedpur as a minority school and therefore, this school can not enjoy the immunities, which are attached with a minority school unless it is so

declared by the Government and hence the arguments canvassed by the counsel for the petitioners under Article 30 of the Constitution of India has

no applicability in the facts of the present case and hence the petition deserves to be dismissed.

Having heard counsel for both sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by

the respondent State authorizes dated 20th August, 2001 at Annexure 2 to the memo of the petition mainly on the Showing facts, reasons and

judicial pronouncements

(1) Front the facts of the case it appears that the school in question i.e., Kabiria Urdu Middle School, Mango, Jamshedpur was granted

recognition in the year 1968-69 which was extended time to time and was granted permanent recognition in the year 1972. Petitioner No. 1 was

appointed as a teacher on 11th February, 1979 whose services were approved by the Government, in I.A. Trained scale in the year 1989 as the

petitioner No. 1 was Graduate in Arts faculty and passed Teachers Training Examination (B. Ed) In the year 1982. Similarly other petitioners

were. also approved in the services in the year 1989. Petitioner No. 4 2 as appointed on. 1st August, 1990 and from the very beginning her

services were approved by the Competent authority thus, petitioners have worked as teachers from 1979 and they were getting salary paid by the

respondents-Government up to December, 1996.

(II) It further appears from the facts of the case that from January, 1997, these petitioners were not paid salary and therefore, a writ petition being

C.W.J.C. No 551 of 2001 was instituted and it was ordered by this Court dated 8th February 2001 whereby the Secretary Education

Department was directed to decide the claim of the petitioners in accordance with law and to pass a speaking order. Respondents-Government

passed an order on 20th August, 2001 whereby direction was given to the management of the Kabirla Urdu Middle School to terminate the

services of the petitioners mainly for the reason that in pursuance of a circular issued by the Government bearing No. 2509 dated 31st December,

1982 has given certain executive instructions which were made effective from 01.1.1971 that whenever a teacher is to be appointed in the school,

it must be appointed from the panel of teachers prepared by the District Education Establishment Committee and the secondly for the reason that

as per the aforesaid circular which is made effective from 01.1.1971 that unless a candidate has obtained teachers training examination certificate,

he will not be eligible for the appointment as a teacher and it is mentioned in the impugned order dated 20th August, 2001 (annexure-2 to the

memo of the petition) that as the petitioners have not fulfilled these two conditions, therefore, their services were illegal and hence, liable to be

terminated. Thus, the bone of contention appears to be applicability of the circular issued by the respondent State bearing No. 2509 dated 3 31st

December 1982.

(III) To examine closely the applicability of the aforesaid circular dated 31st December, 1982. if the preamble of the said circular is the same

which is at annexure 10 to the memo of petition, it appears the same has been issued under Section, 8 of the Bihar Non-Governmental Elementary

Schools (Taking over of Control) Act, 1976 (herein after to be referred to as ''the Act of 1976'' for the sake of brevity). Section 8 of the Act of

1976 reads as under: -

Power to remove difficulties.-- if any difficulty arises in giving effect to the provisions of this Act, the State Government may take-such action, or

pass such order as appears to it necessary for the purposes of removing the difficulty.

(Emphasis supplied)

(IV) Thus, the aforesaid Section empowers the government to pass such order as appears to be necessary tor the purposes of removing the

difficulty. Thus, whenever a new statute is enacted, there might be unforeseen difficulties in its actual and practical application and to remove such

type of difficulties, Section 8 has been carved out. in the statute., Only in such an eventuality, Section 8 is to be invoked. But such a provision is not

made as a cloak or a camouflage for colorable exercise of power for making statute, rules tor -which- altogether different sections have been

enacted and different procedures have been prescribed Section 7 of the Act 1976 reads as under:

Power to make rules. (1) The State Government may make rules not inconsistent with this Act for carrying out the purposes of this Act.

(ii) Every rule; made under this section shall be laid as soon as may be after it is made before each House of the State Legislature while it is in

session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before expiry of the

session immediately following both the Houses agree in making any modifications in the rule or both the Houses agree that the rule should not be

made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification

or annulment shall be without prejudice to the validity of anything previously done under that rule.

(Emphasis supplied)

(V) It has been held by the Hon''ble Supreme Court in Madeva Upendra Sinai and Others Vs. Union of India (UOI) and Others, in paragraphs 45

and 46 as under: -

For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a ""removal of difficulty

clause"" and the power conferred by it on the Government.

To keep pace with the rapidly increasing responsibilities of a. welfare-democratic State, the legislature has to turn our a plethora of hurried

legislation, the. volume of which is. often matched with its complexities, Under conditions of extreme pressure with heavy demands on the time of

the legislature and. the endurance and skill of the draftsman, it is well nigh impossible to foresee all the circumstances to deal with which statute is

enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law This is particularly true

when Parliament undertakes legislation which gives a new dimension, to. ''socio-economic activities of the State or extends the existing Indian-laws

to new territories or areas freshly merged in the Union of India in order to obviate the necessity of approaching the legislature for removal of every

difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time consuming amendatory process, the legislature

sometimes thinks it expedient to invest the executive with a very limited power to make minor adaptations and peripheral adjustments in the statute,

for making its implementation effective, without touching its substance. That is why the ""removal of difficulty clause"" once found upon and

nicknamed as ""Henry VII Clause"" scornful commemoration. of the absolutist ways in which that English King got the difficulty in enforcing his

autocratic will removed through the instrumentality of a service Parliament now finds acceptance as a practical in several Indian statutes of post-

independence era.

(Emphasis supplied)

(VI) Thus, it has been held by the Hon''ble Supreme Court that removal of the difficulty clause should be utilized only for the purpose of removal of

difficulties and it cannot partake the power of making the rules u/s 7 of the Act. 1976. Henry VIII clause cannot be used as a rule making power..

This State has been bifurcated from the erstwhile state of Bihar from 15th November 2000. and till today no rule has been framed u/s 7 of the Act,

1976 Every time, short cut method has been adopted by the, State authorities. The State of Jharkhand has its own Law Commission.. It appears

that the State authorities are not properly using its Law Commission for drafting of the new rules to be enacted u/s 7 of the Act, It is, now high time

for the State of Jharkhand to have its own rules to be framed u/s 7 of the Act of 1976.

(VII) In fact, as per the decision rendered by the Full Bench of the Hon''ble High Court of Krishnadeo Misra Vs. State of Bihar and Others, . Four

similar types of circulars u/s 8 of the Act of 1976 have been quashed and set aside only on the ground that Section 8 of the Act of 1976 empowers

to remove difficulties which cannot be used as a power to make the rules.. Section 8 is like Henry VIII clause which is to be utilized for altogether

different purposes as stated herein above. Certain contingencies might be unforeseen when the statute is enacted. Only those type of eventualities

can be resolved by Henry VIII clause, but the rule making power is altogether different which is envisaged u/s 7 of the Act of 1976. If the

impugned circular bearing No. 2501 dated 31st December, 1982 is looked closely it gives even measurement of the classrooms. In Clause. 2 (iii)

(a) even the area of the land, etc has also been given for the establishment of the primary, as well as the middle school. There are provisions for

library etc also is the aforesaid circular, All these could not have been issued u/s 8 of the Act of 1976

(VIII) Assuming without admitting that this has not been issued u/s 8 of the Act of 1976, but they are executive instructions. issued under Article

162 of the Constitution of India, then also the same is not application to the present petitioners mainly for the reason that whenever any executive

instruction is issued, unless they are issued under Article 309 of the Constitution of India, it can not be given a retrospective effect. Only under the

proviso of Article 309 of the Constitution of India if the rules are enacted then only retrospective effect can be given, There is nothing to show that

before issuing the circular in question which is dated 31st December, 1982 all these requirement of making a rule in terms of proviso to Article 309

of the Constitution of India were satisfied.

(IX) It has been held by the Hon''ble Patna in Smt. Pratibha Singh & anr Vs. State of Bihar & Others reported in. 1988 PLJR 646 in paragraphs

56 and 57 as under:

It is well known that a rule may operate retrospectively only if the same issued in terms of proviso to Article 309 of the Constitution of India.

There is nothing to show that before issuing the circular in question all the requirements for making a rule in terms of proviso to Article 309 of the

Constitution of India were satisfied. It has been noticed hereinbefore that the said rule could not even have been made u/s 8 of the 1976 Act, but

can at best be treated as an executive instruction.

It is well known that such executive instruction framed by the State of Bihar in exercise of its power it conferred upon it under Article 162 of the

Constitution of India cannot be given a retrospective effect.

Further, it is also a well settled principle of law that normally a subordinate legislation operates prospectively unless Power is conferred upon

the rule making authority by reason of the provisions of the statute itself to frame a rule with retrospective effect Reference in this connection may

be made to Life Insurance Corporation of India Vs. Escorts Ltd. and Others,

It is also well known that terms and conditions of service cannot be altered with retrospective effect, Reference in this connection may be made to

T.R. Kapur and Others Vs. State of Haryana and Others, , Ex-Major N.C. Singhal Vs. Director General Armed Forces Medical Services, New

Delhi and Another, , Union of India (UOI) and Others Vs. M. Ravi Varma and Others, and Shyam Dayal Panday. vs. The State of Bihar and

others (1976 1 S.L.R. 407).

(emphasis supplied)

(X) In view of the aforesaid decision, circular No. 2509 dated 31st December, 2002 which has been given retrospective effect from 01.1.1971 is

absolutely arbitrary illegal and dehors the power of State authorities.

(XI) In the facts of the present case, all the petitioners i.e. petitioner nos. 1 to 3 were appointed in the year 1979; their services were confirmed as

stated herein above; they were also paid salary up to December, 1996 and thereafter to September, 2001 by the State after the appointment of

petitioner nos. 1 to 3.

(XII) It further appears looking to the impugned order that as the petitioners, were not appointed from the panel of teachers prepared by Districts

Education Establishment Committee and therefore, their appointment is illegal This contention of the State is not accepted by the Court mainly for

the reason that the circular can not be given effect to from 01.1.1971.

(XIII) One more reason has been given in the impugned order that when petitioner Nos. l to 3 were appointed, they were not trained teachers.

This contention of the State is also not accepted by the Court mainly for the reason that there is circular issued by respondent-State on 2nd May,

1980 bearing No. 1167 which empowers the appointment of a teacher who is untrained and he will be entitled to scale of untrained teacher

Untrained teachers'' scale was in existence at the relevant time. Thus, the Government itself recognized the services of the untrained teachers by

granting them scale of ""Untrained teacher"". It has been held by the Hon''ble Patna High Court reported in the case of Smt. Pratibha Singh & ant

Vs. State of Bihar & Others reported in 1988 PLJR 646 in paragraph 52(A) as under:

52A. Even from a letter dated 2nd May 1980 being No. 1167 issued by Sri Narendra Pal Singh, Special Secretary of the State of Bihar

(Department of Education) to the Director (Elementary ""Education) Bihar, it appears that the State Government- itself, directed that all the trained

teachers shall be paid salary in the scale of pay admissible to a metric trained teacher but chose teachers, who were untrained would receive a;

salary admissible to a metric untrained teacher unless they obtain requisite training therefore. The said letter has been issued in. view of the

Government order bearing No. 104 dated 23.1.1980 purported to have been issued under section. 3 (4) (a) read with section 8 of the 1976 Act

Evidently, therefore, the. Government itself recognized the services of the untrained. teachers.

(XIV), One more reason has been given in the impugned order dated 20th January 2011, at annexure-2 to. the memo of the petition that as the

petitioners were appointed on unsanctioned post, their appointment was illegal. This contention is also not accepted by this Court mainly for the

reason that in the very same impugned order, it has been stated that subsequently there was re-appointment of the petitioners on the sanctioned

post and thereafter they have been confirmed in the services by the respondents-Government itself Petitioner No. 1 was confirmed in the services

or was approved in the services in 1989. Similarly the services, of the petitioner No. 2 was approved w.e.f. 1st April, 1989 and the same is the

ease with petitioner No. 3. So far as petitioner No. 4 is concerned, she was, appointed on 1st August, 1.9.90 and from the very beginning, she

was a Graduate and has cleared teachers training examination (B.Ed) and her services were also approved by the respondents-State authorities

from the date of her appointment i.e. w.e.f. 1st August, 1990. All these teachers are legally competent and eligible to-be appointed as teachers at

the Primary Schools.

(XV) Moreover, right to get salary comes within the ambit of Article 300-A of the Constitution of India. Once such right is accrued, it cannot be

taken away even by rule framed under Article 309 of the Constitution of India by giving retrospective effect. It has been held by this Hon''ble Patna

High Court in Smt. Pratibha Singh & anr Vs. State of Bihar & Others reported in 1988 PLJR 646 in paragraphs 58, 62, 63 as under:

It is further well settled that a vested right can not be taken away even by a rule framed under Article 309 of the Constitution of India by giving

a retrospective effect thereto in as much as by such retrospective amendments the vested rights of an employee cannot be taken away Such rule

must also be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution of India.

Further, when a person is validly appointed he is. entitled to receive salary Such right to receive salary amounts to right to hold property Such

aright of property fall within Article 300A of the Constitution and as such the State Government while issuing an executive flat cannot deprive a

person of his right to hold property 63. Article 162 of the Constitution is subject to other provisions of the Constitution. It is, therefore, necessary

also subject to Article 300 A of the Constipation. Reference in this connection may be made to Bishambhar Dayal Chandra Mohan and Others

Vs. State of Uttar Pradesh and Others, .

In R.N. Nanjundappa Vs. T. Thimmiah and Another, it has been held that if an appointment is illegal and unconstitutional the same cannot be

regularized by issuing an instrument under Article 162 of the Constitution of India. If an illegal appointment cannot be validated by an executive

instruction, there cannot be any, doubt that a legal appointment cannot be invalidated thereby.

(Emphasis supplied)

(XVI) It has further been held in the aforesaid decision in paragraph 3 as under:

The various authorities including the Headmaster to the said school and the District Superintendent of Education recommended that the services

of the petitioners be regularized but allegedly the respondents refused to do so.

(emphasis supplied)

(XVII) It has been held by Hon''ble Patna High Court in 1982 (2) PLJR 512. It has been held in this decision that circular letter being merely an

administrative order could not be given retrospective effect.

(XVIII) One more peculiar facts has been pointed out by the petitioners that petitioners'' school was established and administered by minority and

therefore, as per Article 30 of the Constitution of India, they have right to establish and administer educational institutions which - includes right to.

appoint the teaching staffs as well as non-teaching staffs. It has been held by the Hon''ble Supreme Court in The Secretary, Malankara Syrian

Catholic College Vs. T. Jose and Others, in paragraph 19 as under (quote)

(emphasis supplied)

The general principles relating to establishment and administration of educational institution by minorities may be summarized thus:

(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:

(a) to choose its governing body in whom the founders of The institution have faith and confidence to conduct and manage the affairs of the

institution

(b) to appoint...teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff.

and to take action if there is dereliction of duty on the part of any of its employees:-

(c) to admit eligible students of their Choice and to set up a. reasonable fee Structure

(d) to use its properties; and assets for the benefit of the institution.

(ii) The right conferred on minorities under Article 30, is only, to ensure equality with the majority and not intended to place the minorities in a,

more advantageous position vis-a-vis the majority. There is no reverse discrimination in favor of minorities. The general laws of the land relating to

national interest, national security, social welfare, public, order, morality, health, sanitation, taxation, etc. applicable to ail, will equally apply to

minority institutions also

(iii) The right to. establish and administer educational institutions is. not absolute Nor does. it, include the right to maladminister. There can be

regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration

as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by

the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as

also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and

regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under

Article 30 (1).

(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met the unaided minority educational institutions will have the

freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

(V) Extension of aid by the State does not alter the nature and character of the minority educational institution Conditions can be imposed by the

State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30 (1)

(XIX) Thus, right of minority to establish and administer educational institutions of their choice includes the right to appoint teaching as well as non-

teaching staffs and therefore also, the circular, bearing No. 2501 dated 31st December, 19152 is not applicable to Kabiria Urdu Middle School,

Mango, Jamshedpur. Therefore, reason given in the impugned order dt. 20th August, 2001 (at annexure 2), that the school has not selected

teachers from the ""panel of-teachers prepared by the State Authority is violative of Article 30 of the Constitution of India.

(XX) Contention raised by the State that the school in question was never declared as a minority school., is also not accepted by the Court mainly

for the reason that once a school is established and administered by minorities for educational purposes, it would continue to be so, irrespective of

the fact whether the Government declares it as such or not. When the Government declares that the schools is a minority school, it has recognized

a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of

a legal character which should necessarily have existence antecedent to such declaration. Thus, there is no need of declaration by the State once an

educational institution is established and administered by the minority It has been held by the Hon''ble Supreme Court in N. Ammad Vs. The

Manager, Emjay High School and Others, in paragraphs 12, 13 as under:

Counsel for both sides, conceded that there is no provision in the Act which enables the Government to declare a school as a minority. school.

It so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not; Declaration by the

Government is at best only a recognition of an existing fact. Article 30 (1) of the Constitution reads thus:

(1) All minorities, whether based on a religion or language, shall have the right to establish and administer educational institutions of their

choice.

When the Government declared the School as a minority school it has recognised a factual position that the School was established and is

being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have exited

antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the

Government declared it as a minority school on 2-8-1994.

(Emphasis supplied)

(xxi) Chore is already an application preferred by Kabiria Urdu Middle School, Mango Jamshedpur in the year 1978. In view of these facts also,

the ''circular bearing No. 2501 dated 31st December, 1982 is not applicable to the petitioners.

(xxii) As a cumulative effect of the aforesaid reasons and the judicial pronouncements, decision earlier held by the Patna High Court as referred to

herein above are binding to this Court. Section 84 of the Bihar Reorganization Act, 2000 is para materia with Section 87 of the, Bombay

Reorganization Act 1960 Section 87 of the Bombay Reorganization Act, 1960 reads as under:

Territorial extent of law. The provisions of Part II shall be deemed to have effected any change in the territories to which any law in force

immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bombay shall, until otherwise

provided by a competent legislature or other competent authority be construed as meaning the territories within that State immediately before the

appointed day.

(xxiii) It has been held by the Hon''ble Gujarat High Court in the case of State of Gujarat vs. Gordhandas Keshvaji Gandhi and other reported in

AIR 1960 Guj. 49 that the decisions of the Bombay High Court given prior to 1st of May, 1960 are binding on Gujarat High Court as successor

Court on principle of judicial comity. State of Gujarat was bifurcated under the Bombay Reorganization Act, 3.960 w.e.f. 1st May, 1960. As per

Section 87 of the 1960 Act, the provisions of Part II shell not be deemed to have affect any change in the territories to which any law in force

immediately before the appointed day extends of applies Para 28 of this decision reads as under :

(28) Our answer to the question referred to this Special Full Bench is that the decision of the Bombay High Court given prior to the appointed day,

i.e., to 1st May, 1960, do not constitute any law in force immediately before the appointed day within the meaning, of S. 87 of the Bombay Re-

organization Act., 1960, We hold that the decisions of the. High Court of Bombay give prior to 1st May 1960 have as much binding force and

effect as if they were the decisions given by the Gujarat High Court. itself. A. decision of a single Judge of the Bombay High Court given prior to

1st May, 1960 would have the same binding force and effect as a decision of a single judge of the Gujarat.... High Court; a decision of a Division

Bench of the Bombay High court. given prior to 1st May.. 1960 would have the same binding force and effect as a decision of a Division. Bench

of the Gujarat High Court and a decision of a Full Bench of the Bombay High Court given prior to 1st May, 1960 would have the same binding

forte and effect as a decision of a Full Bench of the Gujarat High Court

(Emphasis supplied)

(XXIV) Now section 84 of the Bihar Reorganization Act, 2000 as stated herein above, is para materia with Section 87 of the Bombay

Reorganization Act,. 1960 Section 84 of the. Bihar Reorganization Act, 2000 reads as under:-

Territorial extent of laws. The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any

law in force immediately before the appointed day extends or applies, and territorial references in any such law to. the State of Bihar shall, until

otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of

Bihar before the appointed day.

(XXV) In view of the aforesaid decision, hot the decisions as stated herein above i.e. reported in 1988 PLJR 646 and decision rendered by the

Hon''ble Patna High Court reported in 1992 (2) PLJR 512 are binding in the light of Section 84 of the Bihar

as a cumulative affect, of the aforesaid facts a and reasons, the circular bearing No. 2501 dated 31st December, 1982 is not binding to the

petitioners as it cannot be given retrospective effect from 01.1.971 as well as tor the aforesaid reasons also, tire same is not binding upon the

present petitioners. Hence, I hereby set aside the order passed by the Secretary, Human Resources Development Department, State of

Jharkhand, Ranchi dated 20th August 2001 (annexure -2 to the memo of the petition) and I hereby direct the respondents to make the payment of

salary to the petitioners in accordance with law for the period running from October, 2001 onwards within a period of four weeks from the date of

receipt production of a copy of this-order

Writ petition is allowed and disposed of with the aforesaid directions and observations.