AI Structured Summary
Not yet generated for this judgment
Judgment
Heard learned counsel for the petitioners and Mr. Lalit
Kishore, learned PAAG-1, both for the State and the Bihar School
Examination Board (hereinafter referred to as the ''Board'').
The petitioners have moved the Court for the
following reliefs:
"1. That the present petition is being preferred assailing validity and correctness of order under memo no. 462 Patna dated 08.06.2016 permitting the private respondent Sri Anand Kishore, Divisional Commissioner, Patna to function and discharge the duty as a Chairman of Bihar School Examination Board, Patna till further order ignoring/violating the provisions/section-4(B) of the Bihar School Examination Board, Act-1952 which deals the said issue related to filling vacancy in the office of the Chairman and for other necessary relief/reliefs to the basis of facts and circumstances of case enumerated and stated hereinafter."
Basically, the contention is that the respondent no. 6
has been made the Chairman of the Board in violation of the
statutory provisions specifically Sections 4A and 4B of the Bihar
School Examination Board Act, 1952 (hereinafter referred to as the
''Act'').
Learned counsel for the petitioners submitted that
initially the Chairman of the Board was appointed under notification
contained in Memo No. 421 dated 26.06.2014 under Section 4(1)(2)
and 4(4) of the Act and his term was for a period of three years. He
further submitted that subsequently the Board was also constituted
under notification contained in Memo No. 605 dated 26.09.2014, by
which, besides the Chairman, six other members were also
nominated. However, the tenure was for a period of three years in
terms of the earlier notification with regard to the Chairman.
Learned counsel submitted that pursuant to the resignation of the
erstwhile Chairman of the Board, there being a vacancy, the
respondent no. 6, who was the Divisional Commissioner, Patna was
appointed as Chairman of the Board in addition to his own duties till
further orders. Learned counsel submitted that a procedure is
prescribed under the Act, especially Section 4A thereof which
stipulates that the Chairman shall be a whole time office bearer of the
Board. Learned counsel submitted that the very initial term of
appointment of the respondent no. 6, being in addition to his other
charge, is unsustainable for the requirement of the statute is that the
Chairman has to be a whole time officer of the Board. Learned
counsel submitted that even if the Government could take recourse to
Section 4B of the Act, upon such vacancy on the post of Chairman, it
was the Director of Secondary Education, Bihar who had to be made
the Chairman and only if he was unable for any reason to be the
Chairman, any other person appointed by the State Government
could carry on the office of the Chairman and that too for the
unexpired portion of the term for which the Chairman would have
continued in office. Learned counsel submitted that there is no discussion as to whether the Director of Secondary Education, Bihar
had been considered and whether he was unable to hold office and
further that after him, the consideration should have been first with
regard to the other members of the Board and only thereafter, was
the Government free to choose any other officer. Learned counsel
submitted that the procedure not being followed with regard to the
appointment of the Chairman, has rendered such appointment a
nullity in the eyes of law. Even on facts, it was contended there have
been grave irregularities in the conduct of the business of the Board
where many examination papers of students have not been traced out
and persons not competent to act as examiners have performed such
duty. He further contended that on a large scale, the appointment of
examiners was of Primary and Middle School teachers, though the
requirement is that the examiners should be teachers of the secondary
grade and that too who have experience of at least three years of
teaching. It was further contended that the Board has made
appointments of various persons on various posts without following
the due procedure which is totally illegal. Learned counsel also drew
the attention of the Court to Annexure-6, which is copy of the
representation dated 21.01.2017 by 529 employees of the Board to
the Chairman as well as the Secretary of the Board pointing out
various irregularities being committed in the functioning of the
Board.
Mr. Lalit Kishore, learned PAAG-1, has opposed the
writ petition and has taken a preliminary objection being that of locus
of the petitioners. It was submitted that no ground has been made for
issuance of any writ of quo-warranto by the Court as nothing has
been pleaded or brought on record even to indicate that the
respondent no. 6 lacked inherent disqualification or ineligibility for
the post and at best the petitioners could have argued with regard to
procedural deficiency. Learned counsel submitted that coupled with
this, the Court would not shut its eye to the fact that the petitioner no.
1 is the so called Union of secondary teachers who in the present
transaction this year had boycotted being examiners for the 2017
secondary examination held by the Board. Learned counsel
submitted that they had held the system to ransom as the career of
almost 30 lakhs students was at stake which would have resulted in
answersheets not being evaluated and results declared in time so that
they may pursue their future academic career elsewhere, thus causing
irreparable loss to them. Learned counsel submitted that, under such
circumstances, alternative arrangements were made keeping the
public interest in mind. However, he added that he is not required to
go into the factual aspect as basically the petitioners contentions are
with regard to the appointment not being in terms of the statutory
provisions. Learned counsel submitted that the statute contemplates
two contingencies. Firstly, the appointment of a Chairman on a
regular full time basis in the normal course of business, and
secondly, when a vacancy arises due to death, resignation or
otherwise, prior to the completion of the full term of the Chairman.
He submitted that in the present case, the vacancy admittedly is prior
to both expiration of the term of the Chairman and on account of
resignation being tendered and accepted by the Government.
Learned counsel submitted that the contention of learned counsel for
the petitioner that the Director of Secondary Education, Bihar has to
be appointed Chairman first is erroneous for the law itself
contemplates that for any reason, if he is unable to hold the office,
the State Government may appoint any other person. Learned
counsel submitted that once the Director of Secondary Education,
Bihar has not made any grievance about his non consideration or
appointment on the post of Chairman for the remaining period, such
contention or cause cannot be espoused by any other person, as in
law, it shall be presumed that for valid reason, he has not been made
Chairman. Learned counsel submitted that equally erroneous is the
submission of learned counsel for the petitioners that thereafter the
consideration zone should be restricted to the members of the Board,
which is not even whispered in the provisions of Section 4B of the
Act. Learned counsel submitted that as far as the tenure of the
Chairman is concerned, though in a case where the post is filled up,
upon the death, resignation or otherwise of the incumbent, before the
term expires, for the remaining period, but in terms of Section 4(4) of
the Act, the said term shall stand extended to a further period which
may elapse between the expiration of the said three years and the
date of the first meeting of the next succeeding Board. He submitted
that even otherwise, the term of the person, who had resigned from
Chairmanship was till 25.06.2014 and thereafter in terms of the
aforesaid provisions of Section 4(4) of the Act, the Chairman shall
continue to hold office till the first meeting of the next succeeding
Board. Learned counsel contended that as the petitioners have tried
to prejudice the mind of the Court by citing various instances with
regard to malfunctioning of the Board, he would also drawn the
attention of the Court to the fact that from the position where the
Board was when the respondent no. 6 took over, there has been
marked improvement and the system is becoming better day by day.
He also pointed out that the very fact that employees have
represented to the respondent no. 6 i.e., the Chairman and the
Secretary of the Board, pointing out irregularities, it is an admission
of having faith in the Chairman and the Secretary that they would
address the issues and look into the grievances.
Having considered the contentions, this Court finds
no merit in the present writ application. First and foremost, the
petitioners have not pointed to the Court any discrepancy with regard
to there being any infraction of the provisions of the statute in the
appointment of the respondent no. 6 or there being even procedure
irregularities, much less any inherent disqualification relating to
eligibility of respondent no. 6 to hold such post. Rather, on the other
hand, the Court is in agreement with the submissions of Mr. Lalit
Kishore, learned PAAG-1, that the law has made a provision for the
contingency which we are concerned for the present, where upon
resignation of the erstwhile Chairman, before his term expires, the
post of Chairman needs to be filled, specifically Section 4B of the
Act. Once the discretion of the Government extends to appointing
any other person of the State Government as Chairman, the
appointment of respondent no. 6 cannot be faulted. The contention
of learned counsel for the petitioners that he has to be a whole time
officer of the Board is clearly erroneous for the reason that under the
normal course of business, when a Chairman is being appointed and
there is a fresh constitution of the Board, such Chairman has to be a
whole time officer of the Board. However, the said provision under
Section 4A(1) of the Act has to be read with Section 4B of the Act,
which deals with a situation where the office of the Chairman
becomes empty prior to the expiration of the full term of the
incumbent Chairman. The mere fact that the statute permits the
Director of Secondary Education, Bihar or any other person
appointed by the State Government to hold the post of Chairman,
itself presupposes that a person would be only discharging the duty
in addition to his substantive post and if the power to appoint in
terms of Section 4B is read in terms of the provisions of Section
4A(1) of the Act. The two provisions would be self contradictory, if
once a person is appointed full time, he would no longer either be the
Director of Secondary Education, Bihar or any other person and shall
only be the Chairman of the Board. Thus, the law itself makes it
amply clear that the arrangement under Section 4B would be of a
person who already is holding some other post including that of
Director of Secondary Education, Bihar. Coming to the question of
the tenure not exceeding the remaining tenure of the erstwhile
Chairman, as has rightly pointed out by Mr. Lalit Kishore, learned
PAAG-1, Section 4(4) makes it clear that there should not be any
vacancy/ vacuum in the system and even if the said term of three
years expires, it shall stand extended to any further period which may
elapse between the expiration of the said three years till the date of
the first meeting of the next succeeding Board.
The Court would also like to dwell on another aspect
of the matter, which in the present day is of more importance. The
same is with regard to persons moving the Court for oblique reasons.
In the present case, when the persons, who are members of a Union
which claims to be that of Secondary Teachers, they were the persons
who, till the present time were the examiners. It does not need to be
over-emphasized that the illegalities committed have been at the
level of both examination and more importantly, at the level of
evaluation/examination of copies and thus, they were an important
part of the system which has resulted in the present day
malady/malaise. Secondly, instead of coming to the Court seeking
its intervention to improve the situation, targeting an individual and
that too, on frivolous and unavailable grounds in law, the Court finds
the same is either as a proxy or for oblique reasons and not with
clean and bona fide intention.
Moreover, as far as the factual aspect of any
irregularities being committed by the Board or otherwise, there being
no specific allegation against the Chairman i.e., respondent no. 6,
who is functioning, as no tangible material has either been pleaded or
brought on record to indicate any accusation, which would be worth
considering as far as respondent no. 6 is concerned. Such objection,
in the opinion of the Court, remaining unsubstantiated deserves to be
rejected outright.
In view of the discussions made hereinabove, the writ
petition stands dismissed with a cost of Rs. 50,000/- to be deposited
with the Bihar State Legal Services Authority within two weeks from
today, failing which the Registry shall place the matter before the
Bench for appropriate orders.