Md. Sahid Alam vs Chairman of Bihar State Madarsa Education Board and Others

S.N. Jha, J.—The dispute in this writ petition relates to appointment of Fazil teacher in the Madarsa Mahmadia, Semaria, Bhagalpur (''the Madarsa'' in short) and the Petitioner seeks quashing of the order of the Chairman of the Bihar State Madarsa Education Board dated 15.6.1996 approving the appointment of Respondent No. 4 Md. Nassar Ahmad on the post. The facts of the case which are short and simple, may be stated as follows:

The post of Fazil in the Madarsa was advertised by the Madarsa pursuant to whhich both the Petitioner and Respondent No. 4 applied. In the panel which was prepared on 23.11.95 on the basis of interview etc., Respondent No. 4 was shown at SI. No. 1 while the Petitioner" was shown at SI. No. 2. The Selection Committee however, rejected the candidature of the Respondent on the ground that he was already working as teacher (on the post of Alim) and he had not taken ''no objection'' for such appointment. The name of the Petitioner who was at SI. No, 2 was accordingly forwarded to the Secretary of the Bihar State Madarsa Education Board (''the Madarsa Board'' in short) for approval. The Secretary of the Board disapproved the resolution of the Selection Committee rejecting the candidature of the Petitioner. Holding that in was not necessary to obtain ''no objection'' as envisaged in Article 589 of the Bihar Education Code, he accorded approval to the appointment of the Respondent by order dated 29.2.96. The Petitioner moved |he Chairman of the Board the upheld the decision of the Secretary by order dated 15.6.1996 impugned in this writ petition.

Mrs. Sheema Ali Khan, learned Counsel for the Petitioner submitted that Madarsa Board and/or its Chairman/Secretary had no jurisdiction to inter (sic) with the decision of the Selection committee or the Managing Committee and therefore, the impugned orders/decision of the Secretary and the Chairman of the Madarsa Board are illegal and without jurisdiction, and should fie set aside.

Mr. S.A. Nasar Warsi, learned Counsel for the Respondents submitted that Respondent No. 4 was already working as a teacher on the post of Alim in the same Madarsa and therefore, he was lot required to take ''no objection'' and the ground for rejecting his candidature was thus not valid. Having been placed at SI. No. 1 in the panel, the approval of his appointment was rightly accorded. The continent has since been working on the post and there can be no justification to interfere with his appointment. It was contended that if the Petitioner was aggrieved by the decision of the Chairman of the Madarsa Board, he should have preferred appeal u/s 28 of the Bhiar State Madarsa Board Act, 1981. In this connection he referred to a decision of this Court in the case of Managing Committee, Madarsa Islamia Falahul Muslemeen and Others Vs. The State of Bihar and Others . On the point of exclusive competence of the Managing Committee of the Madarsa as a minority institution�in the matter of appointment etc. of the teachers, reliance was placed on Yunus Ali Sha Vs. Mohamed Abdul Kalam and Others, .

The decision in the above mentioned case of Yunus Ali Sha was rendered in the context of termination of the services of the teachers and the point for consideration was whether the prior approval of the Director of Education under the provisions of Orissa Education Act was necessary. The Supreme Court held that while the Director of Education may have power to supervise the functioning of the minority schools in order to ensure that they do not malfunction or are not mal-administered, in view of Article 30(1) of the Constitution, the Director has no control over the actual management of the school regarding appointment or termination of the services of the teachers which falls within the control of the managing committee of the minority institutions. In this regard the Court noticed an earlier decision of the Supreme Court rendered in the context of the Bihar Madarsa Education Board Act in the case of Bihar State Madarsa Education Board v. Anjuman Ahle-Hadees, 1994 Supp. (2) SCC 509 and I consider it proper to refer to the said decision. As a matter of fact, from perusal of the said decision, it would appear that the Supreme Court merely affirmed the decision of this Court, albeit by a speaking order, and therefore, it becomes necessary to look into the judgment of this Court which is reported in 1985 PLJR 837 entitled Anjuman Ahle-Hadees v. State of Bihar.

It would appear that the point at issue in Anjuman Ahle-Hadees was the validity of certain provisions relating to supervisory functions of the Madarsa Board in the matter of disciplinary control over the teachers and staff of the Madarsa, as contained in Section 7(2) and 24 of the Act. The relevant part of Section 24 laid down that services of the approved teachers and non-teaching staff of a recognised Madarsa shall be under the supervision of the Board and no employee shall be discharged or dismissed from service without prior approval of the Board. this Court observed at page 846 of the Report that although for the maintenance or achievement of excellence of education and institutions, it is essential that teachers and non-teaching staff of a Madarsa have fixity of tenure and that they are not hired and fired Ad-lib by the Managing Committee, but that is entirely different from laying down that no person can be dismissed or discharged without the; prior approval of the Board. this Court held that such a provision impinges upon the fundamental right of minority institutions under Article 30(1) of the Constitution. Same view was expressed by the other learned Judge of the Bench at page 849 of the Report. The decision in Anjuman Ahle Hadees'' case, rendered in the context of exercise of power by the Madarsa over disciplinary action taken by the Managing Committee, according to me, is not quite relevant to the point at issue in the present case which involves the question relating to exercise of similar supervisory power in the matter of appointment of teachers. The case is rather covered by the ratio of the decision in All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, .

While considering the validity of provisions of Section 18(2)(b) of the Bihar Non-Government Secondary Schools (Taking-over of Management and Control) Act, 1982, running as under:

According to the prescribed qualification laid down by the State Government for the teachers of the nationalised secondary schools and within the number of sanctioned posts, the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted u/s 10 of this Act. Provided that while considering the question of giving approval to appointment of any teacher under this subsection the board shall only scrutinise as to whether the proposed appointment is in accordance5 with the rules laying down the qualification and the manner of making appointment framed by the State Government has been followed or not, and no more.

the Supreme Court, upholding the provision, observed at page 316 of the report:

Clause (b) provides for two things, firstly it requires the managing committee of a minority school to appoint teachers possessing requisite qualifications as prescribed by the State? Government for appointment of teachers of other nationalised schools, secondly, the managing committee & required to make appointment of a teacher with the concurrence of the'' School Service Board constituted u/s 10 of the Act. Proviso to ct (b) lays down that the School service Board while considering the question of granting approval to the appointment of a teacher shall ascertain if the appointment is in accordance with the rule laying down qualifications, and manner of making appointment framed by the State Government. The proviso make it clear that the Schools Service Board has no further power to interfere with the right of managing committee of a minority school in the appointment of a teacher. Under Clause (b) the manager committee is required to make appointment of a teacher with the concurrence of the school service board. The expression ''concurrence'' means approval. Such approval need not be prior approval, as the clause does not provide for any prior approval. Object and purpose underlying Clause (b) is to en-lure that the teachers appointed in a priority school should possess requisite qualifications and they are appointed in accordance with'' the procedure prescribed and the appointments are made for the sanctioned strength. The ''selection and appointment of teachers his left to the management of the minority school, there is no interference with the managerial rights of the institution. In granting approval the School Service Board has limited power. The appointment of qualified teachers in a minority school is a sine qua non for achieving educational standard and better administration of the institution. Clause (b) is regulatory in nature to ensure educational excellence in the minority school.

The Bihar State Madarsa Education Board Act however, does not contain any provision similar to the one contained Section 18(2)(b) of the Bihar Non-Government Secondary Schools (Taking pr of Management and Control) Act. Section 26(2)(k) of the Act empowers the State Government to frame Rules relating to appointment and other service condition the teachers and non-teaching employees of the recognised Madarsa but It is an admitted position that no Rules in this regard have been framed by the Government. In the absence, of any statutory provision empowering the Madarsa Board to approve/disapprove the (sic)/appointment made by the Managing. Committee of the Madarsa, it has to be held that the Board has no (sic) or authority to interfere with (sic) selection/appointment made by the managing Committee.

As a matter of fact, counsel for (sic) the Petitioner and the Respondents (sic) in principle that the Madarsa Board (sic) no Jurisdiction to make any modification or change in the selection/appointment made by the Managing Committee of the Madarsa. The contention put forward on behalf of the Petitioner is that although the Respondent was placed at SI. No. 1 in the panel, his candidature having been rejected by the Selection Board, the Secretary or the Chairman of the Madarsa Board could not have meddled with the decision of the Selection Board/Managing Committee. The submission appears to be attractive in the first instance but cannot be accepted, for, it may result in injustice to the Respondents. The Respondent was undisputedly working in the same Madarsa on the post of Alim. Even if it be assumed that ''no objection'' was required, the application submitted by the Respondent was entertained and he was also allowed to participate in the selection and, in fact, placed at SI. No. 1 in the panel by the Selection Board/Managing Committee. The requirement of production of ''no objection'' certificate must be treated as having been substantially complied with or waived. If the Managing Committee thought that without such ''no objection'' certificate, the Respondent, was not eligible for submitting the application, the Committee/Selection Board should have better rejected his candidature at the very first instance. Having entertained the same and found him otherwise suitable, there was no point in not appointing him on a technical ground, which did not go to the root of the matter.

In the above view of the matter, I do not find any illegality or irregularity in the selection/appointment of Respondent No. 4 and consequently, I do not find any merit in the claim of Petitioner.

In the result, this writ petition is dismissed.