Surya Nath Singh Yadav vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard learned counsel for the parties. The initial prayer of the petitioner in this writ application which was filed on 15.1.2013 had read as follows:--

"1.(i) Issuance of an order, direction or a writ in the nature of Mandamus commanding the Respondents concerned, specially the Respondent No. 2, to grant approval to petitioner''s appointment on the post of Headmaster in Arya Kanya Vidyalaya, Naya Tola, Patna, which has been made by the Respondent No. 5, vide Annexure-6, to this writ petition, and consequent upon grant of such approval, the Respondent No. 2 may further be suitably be directed to pass further necessary orders, granting all of its'' consequential benefits to the petitioner, including the payment of his Arrears of Salary from 10.9.2005 to till date followed with the payment of Current Salary to the petitioner on the promoted post of Headmaster in Arya Kanya Vidyalaya, Naya Tola, Patna.

(ii) Issuance of an order, direction or a writ in the nature of mandamus commanding the Respondents concerned to make the payment of penal interest against the arrears of Salary Claim of the petitioner at least @ 12% per annum."

Let it be noted that after filing of the writ application in the month of January, 2013, I.A. No. 6423 of 2013 had been filed on 6.9.2013 wherein the petitioner had assailed the advertisement published by the respondent No. 5 in Hindi daily newspaper "Aaj" on 1.9.2013 for filling up the post of Headmaster in the school, in question, as also for quashing of the order dated 4.10.2012 appointing Kumari Lata, Acting Headmistress of the School.

During the pendency of this writ application after the respondent No. 5 had entered appearance and had filed its counter affidavit enclosing an order dated 20.1.2014 rejecting the case of the petitioner for approval of appointment of the petitioner on the post of Headmaster in Arya Kanya Vidyalaya, Naya Tola, Patna (hereinafter to be referred to as "the school"), the petitioner thereafter had filed another interlocutory application being I.A. No. 3268 of 2014 on 21.4.2014 wherein the following two additional reliefs were prayed:--

"1(i) Issuance of an order, direction or a writ in the nature of Certiorari quashing the order passed by the Respondent No. 2 vide Memo No. 64 dated 20.1.2014 (Annexure-A at page No. 13 to the Counter Affidavit filed on behalf of the Respondent No. 5), whereby the Respondent No. 2 has declined to grant approval to petitioner''s appointment on the post of Headmaster in Arya Kanya Vidyalaya, Naya Tola, Patna, which had been made by the Respondent No. 5, vide Annexure-6 to the main writ petition, and consequent upon quashing of the said order dated 20.1.2014, the Respondent No. 2 may further be suitably be directed to pass further necessary orders, granting approval to the appointment of the petitioner as Headmaster of the School in question, that too, with all of its'' consequential benefits.

(ii) Issuance of an order, direction or an appropriate declaration that since the present Respondent No. 5 has not been constituted in terms with Section 21 of the "THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009", the same (Respondent No. 5) is thoroughly incompetent to take any action against the petitioner or in any matter appertaining to the Management of the School in question, including petitioner''s suspension vide Annexure-24 at page No. 29 to I.A. No. 6423 of 2013, petitioner''s suo-moto removal from the post of Headmaster of the School in question, that too, in absence of any order from any comer, and the appointment of the newly added Respondent No. 6 as the Headmistress of the School in question, cannot have the sanction of law, as such all the said actions taken by the Respondent No. 5 is fit to be declared as null and void ab initio."

Mr. Purushottam Kumar Jha, learned counsel for the petitioner, in support of the aforementioned prayers, has basically concentrated on the aspect that the impugned order passed by the Director, Secondary Education, refusing approval of the appointment of the petitioner on the post of Headmaster in the School on the ground that the petitioner was not treated to be Headmaster of the School by the management of the school, is factually incorrect and even legally impermissible. In this regard, he has placed reliance on different communications of the authorities of the school to show that he was validly appointed as Headmaster of the School and the subsequent story of his being removed from the post of Headmaster was an act of incompetent persons who were not authorized to act on behalf of the Managing Committee of the School. In support of his submission, Mr. Jha has relied on an amended provision of Bihar Non-Government Secondary School (Taking Over of Management and Control) (Amendment) Act, 2011 which, according to him, has totally given a new dimension to the exercise of power of giving approval to the appointment of the Headmaster and Teacher made in the minority schools.

Mr. Jha has even gone to the extent that since power of approval in the appointment of the Headmaster/Teacher in a minority high school is vested in the State Government/Director, Secondary School, the appointing authority of the Teacher and Headmaster of the Minority School in effect will be the State Government itself and, therefore, whatever could have been done by the present Managing Committee for displacing the petitioner on the post of Headmaster will not come in the way of the petitioner in getting his services approved as the Headmaster of the School. Mr. Jha in this regard ''has placed reliance on various documents to show that the present Managing Committee has never been approved by the State Government/Director, Secondary Education and, as such, the earlier decision of the Managing Committee of appointment of the petitioner on the post of Headmaster cannot be nullified. According to Mr. Jha, the provisions of the Bight of Children to Free and Compulsory Education Act, 2009 have not been followed while constituting Managing Committee, any decision of a Managing Committee, not even approved by the State Government, will have no adverse effect on the appointment of the petitioner on the post of Headmaster.

Referring to the facts mentioned in the writ application, Mr. Jha has highlighted that the petitioner was initially appointed as an Assistant Teacher for teaching the subject of geography in the school on 24.8.1990 and the petitioner having continued uninterruptedly in service for almost next fourteen years, when a vacancy was caused on account of retirement of the then Headmistress, the Managing Committee of the School had authorized one Ajit Kumar Rai to function as In-charge Headmaster of the School with effect from 1.7.2004. According to petitioner, the said Ajit Kumar Rai took charge of the post of In-charge Headmaster of the School on 1.7.2004 and the Managing Committee of the School on 19.8.2004 took a conscious decision to fill up the post of Headmaster/Headmistress of the School whereafter an advertisement was issued on 9.8.2005 in the local newspaper "Aaj" for making such appointment on the vacant post of Headmaster/Headmistress in the School. The petitioner claims that a duly constituted Selection Committee had selected the petitioner and such recommendation of the Selection Committee was also approved by Pradhan of the Bihar Arya Pratinidhi Sabha vide his letter dated 8.9.2005 whereafter the appointment of the petitioner was made on the post of Headmaster on 9.9.2005 and he had submitted his joining on the post of Headmaster of the School on 10.9.2005.

The petitioner has also claimed that on 12.1.2006, the respondent No. 5 vide his letter No. 2/06 dated 12.1.2006 had requested the District Inspector of School, Patna to do the needful for approval of the appointment of the petitioner on the post of Headmaster as also for fixation of his salary. According to the petitioner, his case for approval of appointment on the post of Headmaster in the minority school had remained pending ever since January, 2006, and in the meantime, the dispute had arisen between the different factions of the Management of the School leading to filing of a criminal case as also setting up of another Headmistress, namely, Lata Kumari on the post of Headmistress of the School. Thus, according to Mr. Jha, learned counsel for the petitioner whatever facts have been pleaded in the writ application will only go to establish that the petitioner having been appointed on the post of Headmaster by the competent Managing Committee with the approval of the Pradhan of the Management was only awaiting for approval of his appointment in terms of Section 18 of the Bihar Non-Government Secondary School (Taking Over of Management and Control) Act, 1981.

It is in this factual scenario including certain events taking place during the pendency of this writ application in the order of rejection of approval of the appointment of the petitioner on the post of Headmaster passed by the Director, Secondary Education by an order dated 20.1.2014 that the learned counsel for the petitioner has pressed for a number of reliefs prayed in the main writ petition as well as two Interlocutory petitions.

In this case the respondent No. 5 has filed its counter affidavit as also supplementary counter affidavit and Mr. Satyabrata Verma, learned counsel appearing on behalf of the respondent No. 5, has taken a specific stand that the so-called appointment of the petitioner on the post of Headmaster in view of an advertisement dated 9.8.2005 was itself wholly without jurisdiction, inasmuch as, it was based on the decisions taken by the incompetent authorities, who have no jurisdiction to take a decision for such appointment. According to him, earlier the petitioner was suspended on 25.4.2006 on some very serious charges and the petitioner had continued in suspension for a period till 27.5.2008 when the Managing Committee, having considered the undertaking given by the petitioner that he shall behave properly in future vide his application dated 15.1.2008, had revoked his suspension by specifically mentioning that his joining would be accepted on the post of Assistant Teacher.

According to Mr. Verma, the petitioner thereafter had continued only as an Assistant Teacher after revocation of his suspension on 27.5.2008. Mr. Verma in this regard has also placed reliance on the averment made in the supplementary counter affidavit wherein an explanation was sought for from the petitioner on 28.10.2012 describing him only as an Assistant Teacher and has gone to explain that when the petitioner did not submit his explanation, another reminder was given to him on 4.1.2013 to submit his explanation both with regard to his remaining absent from duty as also embezzlement of funds of the school. It is the case of the respondent No. 5 as highlighted in the supplementary counter affidavit and explained by Mr. Verma that the petitioner had remained absent from his duty and that the school was functioning with another person, namely, Kumari Lata as the Headmistress of the School.

In the background of the aforementioned facts, this Court will have to decide the dispute raised by the petitioner which has to be essentially confined to the decision taken by the Director, Secondary Education, refusing approval in the appointment of the petitioner on the post of Headmaster in the School. There is, however, no dispute that the school, in question, is a minority School and the power of appointment of teaching/non-teaching post is exclusively vested in the Managing Committee of the school. The Government and for that purpose the officials of the State Government have no power to make appointment on the teaching/non-teaching post in a minority school. Since the teaching and non-teaching personnel of minority school receive payment of salary by way of financial assistance of the State Government, the Government has put a restriction/ceiling on the number of teaching posts in such schools and has also prescribed a procedure for giving approval to such appointments made by the Managing Committee in order to ensure that such appointments are made against the sanctioned post as may be admissible for payment of salary by the State Government only of such persons, who hold the qualification and experience as laid down for appointment on the post of Headmaster and Teacher in a nationalized high school. To that extent, it would be useful to quote the provision of Section 18 of the 1981 Act, which reads as follows:--

Let it be noted that the provision of Section 18 of the 1981 Act had subsequently undergone a change by way of amendment brought in the year 2011 by the Bihar Act 5 of 2011 which, also for the sake of convenience and clarity, is quoted hereinbelow:--

(underlining for emphasis)

A simultaneous reading of the original provision as laid down in 1981 Act read with its amended provision of the year 2011 and specially its underlined portion will definitely go to show that the power of appointment on sanctioned post of teaching/non-teaching personnel including the Headmaster has always been and even now vested in the Managing Committee of Minority High School and the approval of service has to be also given only on the recommendation of the Managing Committee. In other words, the minority status of an institution including High School has been left untouched. The Government has been given no power to regulate much less appoint any person either on teaching or non-teaching post in a minority school even though it has to make payment of salary to the teaching and non-teaching personnel of minority school within the sanctioned strength. The decision of the Managing Committee, therefore, is the key factor for giving approval in the appointment and if the Managing Committee itself would create a dispute with regard to any appointment and/or refuse to recommend the case of a person for giving approval on the post of teaching/non-teaching post in the minority school, the Director, Secondary Education or for that purpose the State Government will not be in a position to accord approval.

In the background of this position which would emerge from reading of Section 18 of the Act, there will be no difficulty for this Court to hold that there is a serious dispute as with regard to appointment of the petitioner on the post of Headmaster.

The petitioner claims that his appointment was made in the year 2005 on the basis of approval given by the Pradhan of Bihar Arya Pratinidhi Sabha dated 8.9.2005 as contained in Annexure-5. The said letter dated 8.9.2005, however, has been written by one Bhupnarayan Shastri in capacity of Pradhan and about him the respondent No. 5 in the counter affidavit has gone to explain that he was never authorized to work as Pradhan and, to that extent, it would be relevant to quote paragraph Nos. 7 to 20 of the counter affidavit, which has not been controverted by the petitioner despite its copy being served on the learned counsel for the petitioner on 30.1.2014 and the same reads as follows:--

That it is submitted that Arya Samaj is sect of the followers of late Dayanand Saraswati, who had undertaken various social reforms and his followers formed the society for preaching and propagating the teachings of late Dayanand Saraswati. The society is headed by its Apex Body i.e. Sarvadeshik Arya Pratinidhi Sabha (hereinafter referred as S.A.P.S.). The State level society is called Bihar Rajya Arya Pratinidhi Sabha. The office bearer of the State unit are elected in the general body meeting of the Arya Samaj is. The Prathan of B.R.A.P.S. constitutes the Managing Committee of the School, as per the prescribed Rules.

That it is submitted that in December 2004, the election of the Bihar State Pratinidhi Sabha took place at Samudaik Bhawan, Hajipur, wherein Sri Bhup Narayan Shashtri was elected, as Pradhan and Sri Jagdish Narayan Arya, as Mantri apart from other office bearer.

That it is stated that the Committee headed by Sri Bhup Narayan Shashtri was removed by order dated 1.9.2005, passed by the Sarvadeshik Arya Pratinidhi Sabha, headed by Captain Dev Ratan Arya and in his place an ad hoc committee was constituted, in which Vijay Shankar Mishra was appointed, as Pradhan along with other members. It is submitted that Vijay Shankar Mishra dissolved the School Managing Committee of Arya Kanya Vidyalaya, Naya Tola, Patna and constituted a new Managing Committee vide letter No. 19/05, dated 3.10.2005.

That it is submitted that the S.A.P.S. vide its letter dated 30.11.2006, addressed to the Pradhan of Bihar Rajya Arya Pratinidhi Sabha (hereinafter referred as B.R.A.P.S.), intimated that election of B.R.P.S. has been fixed for 10.12.2006, as such the elections be held on the said date.

That in terms of the direction contained in letter dated 30.11.2006, the elections of B.R.A.P.S. was held on 10.12.2006, in which Sri Ganga Prasad was elected, as the Pradhan along with other functionaries, as would be evident from the list of elected members for the period 2006-2009, forwarded to Assistant Inspector General, Registration vide letter dated 12.4.2007. It is stated that Sri Ganga Prasad has been elected, as Pradhan for the sessions 2006-09, 2009-2012 and 2012-2015.

That Sri Ganga Prasad, who was elected, as Pradhan of B.R.A.P.S. in the election held on 10.12.2006, constituted the Managing Committee of all the 8 schools including Arya Kanya Vidyalaya, functioning in the State of Bihar under the aegis of B.R.A.P.S.

That it would not be out of place to submit here that Sri Bhup Narayan Shashtri (as Plaintiff No. 2), filed Title Suit No. 7 of 2007, in the Court of learned Sub-Judge-1st, Patna, praying therein to declare that the Committee of B.R.A.P.S. constituted under Vijay Shankar Mishra by S.A.P.S. headed by Captain Dev Ratan Arya are not the office bearer or member of B.R.A.P.S. and their so-called claim of forming ad hoc committee is illegal, unlawful and fraudulent, further the plaintiff also sought for temporary injunction for restraining the Defendants from claiming or acting, as the office bearer or members of B.R.A.P.S. and from interfering into the functioning of the Plaintiffs, as the Secretary and Pradhan of B.R.A.P.S. apart from other reliefs.

That from the facts stated above, it is clear that Bhup Narayan Shashtri was removed, as Pradhan of B.R.A.P.S. on 1.9.2005, by S.A.P.S. and in his place, Vijay Shankar Mishra was appointed, as Pradhan along with other members by constituting an ad hoc committee. The said Bhup Narayan Shashtri also challenged the constitution of the ad hoc committee by filing a Title Suit. Since Sri Bhup Narayan Shashtri was already removed, as Pradhan on 1.9.2005, as such he had absolutely no jurisdiction to direct the Secretary of the Managing Committee of Arya Kanya Vidyalaya (hereinafter referred to as the School) to appoint the "Petitioner on the post of Headmaster vide his letter dated 8.9.2005 (Annexure-5, Pg.-20 of the Writ Application).

That it is submitted that the appointment of the Petitioner on the post of Headmaster in view of the advertisement dated 9.8.2005 (Annexure-4, Pg.-19 of the Writ Application) was made on direction of an authority, who had absolutely no jurisdiction to direct for such appointment, when Vijay Shankar Mishra was appointed, as Pradhan on 1.9.2005.

That it is submitted that the appointment of the Petitioner, as Headmaster of the School did not had the approval of the Pradhan of B.R.A.P.S. i.e. Sri Vijay Shankar Mishra, further it appears that the Secretary of the School Managing Committee appointed by Sri Bhup Narayan Shashtri being aware that the Pradhan has been removed, he would seeking approval of the new Pradhan appointed on 1.9.2005, in haste accepted the joining of the Petitioner and sent the documents for approval of the authorities.

That it is submitted that the School was established in the year 1928, for imparting education to girl students and since its inception, the School is run by Headmistress i.e. at no point of time any Headmaster has been appointed."

As a matter of fact, the petitioner cannot claim that he was working as a Headmaster because he himself had filed his application on 15.1.2008 as contained in Annexure-F to the counter affidavit wherein he has stated as follows:--

It was, therefore, the duty of the petitioner to bring this fact to the notice of this Court that even though he was appointed on the post of Headmaster but subsequently he had been suspended and had sought apology from the Managing Committee whereafter he was only directed to join as an Assistant Teacher by the Managing Committee vide its order dated 27.5.2008, which reads as follows:--

As both the documents contained in Annexures-F & G extracted above are not in dispute, this Court will have no difficulty in coming to a conclusion that the so-called earlier appointment of the petitioner on the post of Headmaster did not remain in existence on account of suspension followed by his taken back in the school only in capacity of Assistant Teacher.

The rest of the story of the petitioner that he once again became Headmaster in the year 2012 under the orders of some authority may or may not be true but, then, it is a fact admitted by the petitioner that the post of Headmaster/Headmistress was advertised by the Managing Committee on 1.9.2013 whose quashing has been sought by the petitioner by filing I.A. No. 6423 of 2013 along with a prayer for also setting aside the order of the Managing Committee describing Kumari Lata as an Acting Headmistress of the School. The fact, therefore, which has been pleaded by the petitioner in I.A. No. 6423/2013 filed on 6.9.2013 would be sufficient to show that there was a bona fide dispute with regard to the petitioner''s claim of being Headmaster of the School and, in any event, it cannot be said that in terms of Section 18, the competent Managing Committee of the School had ever recommended for grant of approval of the service of the petitioner at least before the Director, Secondary Education who as noted above was to grant such approval only with effect from 27.5.2011, inasmuch as, earlier such power was vested in the Bihar Vidyalaya Seva Board/Bihar Staff Selection Commission.

In this background, if the contents of the impugned order dated 20.1.2014 whereby and whereunder the proposal for giving approval to the appointment of the petitioner on the post of Headmaster has been rejected, it would be found that such proposal was submitted by the District Programme Officer (Establishment), Patna vide his letter No. 2424 dated 17.7.2013. Obviously, whatever has been said by the petitioner in the writ application about such proposal being given in the year 2005 was never under consideration before Director, Secondary Education. Thus, this proposal dated 17.7.2013 had to be backed by a valid resolution/recommendation of the Managing Committee in terms of Section 18(3)(Kh)(ii) in the case of the petitioner who himself accepted his appointment on the post of Assistant Teacher pursuant to the order of the Managing Committee dated 27.5.2008 (Annexure-G to the counter affidavit). The Director, Secondary Education had therefore correctly arrived at a finding that the petitioner was actually working as an Assistant Teacher and was not functioning on the post of Headmaster of the School. To that extent, it would be also useful to quote the impugned order dated 20.1.2014, which reads as follows:--

In the normal course, since the petitioner himself had relied on the amended provision of Section 18 by Bihar Act-5 of 2011 brought in force with effect from 27.5.2011, this writ application had become incompetent if not infructuous because under Section 18(chch) inasmuch as such order was also appealable before the Principal Secretary of the Human Resource Department. The petitioner obviously has not filed an appeal and had pressed this writ application. Thus, this writ application in fact is also fit to be dismissed on the ground that the petitioner had not exhausted the statutory alternative remedy by filing an appeal against the impugned order passed by the Director, Secondary Education dated 20.1.2014.

The submission of the learned counsel for the petitioner that the appointing authority of a Headmaster in a minority school in effect is and/or would be the State Government because the approval of such appointment is given by the State Government is patently absurd. As noted above, Section 18 of the Act makes it clear that the power of appointment of teaching and non-teaching post lies invariably with the Managing Committee of the minority school and approval of their such appointment has to be only accorded by the Director, Secondary Education as per the provision of Section 18 of the Act.

The further submission of Mr. Jha that there is a dispute in the constitution and functioning of Bihar Arya Pratinidhi Sabha and Managing Committee and/or the Managing Committee, which had allegedly appointed the petitioner as a headmaster was a validly constituted Managing Committee, cannot be even gone into much less adjudicated in a writ jurisdiction specially when the Title Suit No. 7 of 2007 filed by Bhup Narayan Pradhan, who had allegedly given approval to the appointment of the petitioner on the post of Headmaster, is still pending in Civil Court, Patna as fully narrated and explained in paragraph No. 13 of the counter affidavit which also has not been even controverted by the petitioner. As a matter of fact, when the petitioner has himself accepted and explained the authority of Bihar Arya Pratinidhi Sabha, Patna and the school management to be also bound by the decision of such Bihar Arya Pratinidhi Sabha and its Pradhan, he cannot be heard to say that the approval of his so-called appointment given by the disputed Pradhan namely Bhup Narayan Shastri who himself has filed Title Suit for declaration of his being a valid Pradhan he cannot even other (sic) would amount to his valid appointment of the petitioner on the post of Headmaster in the eye of law. The subsequent events since 2007 as discussed above in course of which the petitioner was suspended and taken back in service only as a teacher followed by appointment of Lata Kumari as Acting Headmistress would also totally demolish the case and claim of petitioner being Headmaster.

This Court therefore must hold that the writ application, so far it relates to assailing the order of the Director, Secondary Education dated 20.1.2014, is wholly misconceived inasmuch as the reasons given therein for not approving the appointment of the petitioner on the post of Headmaster in a Minority High School are quite valid and justified. The Director, Secondary Education could not in fact have approved appointment of the petitioner on the post of Headmaster when the Managing Committee of the Minority School being the appointing authority itself did not recognize and/or support his case.

For the rest of the relief claimed by the petitioner, as with regard to displacement of Lata Kumari on the post of Acting Headmistress or quashing of the advertisement issued by the Managing Committee for filling up the post of Headmaster/Headmistress of the school or for payment of salary of the post of Headmaster since 2005 to the petitioner are all related to power and authority of the Managing Committee of the Minority School. Such grievance of the petitioner as against the Managing Committee of a Minority School cannot be adjudicated in the writ jurisdiction. Reference in this case may usefully be made to the Division Bench judgment of this Court in the case of Santosh Kumar Vs. The State of Bihar and Others, wherein it has been held as follows:--

"15. In view of discussions made above and after noticing the various authorities cited by both the parties, we are of the considered view that earlier view of this court as reflected by Division Bench judgments in the case of Smt. Radha Kumari Singh (supra) and Chandra Nath Thakur (supra) as well as a Full Bench judgment in the case of Smt. Manju Devi (supra) does not require any reconsideration. We would, however, like to point out that earlier judgments indicated above, particularly in the case of Smt. Radha Kumari Singh (supra), it was clearly indicated that writ petition against a non-statutory body such as Governing Body of a Private College was not maintainable as there was no allegation of infraction of any statutory provision. In a given case where in exercise of statutory powers the University granting affiliation to a private college imposes reasonable conditions governing teachers or employees of an affiliated college, then in case of violation of Statutes or Rules of the University by an affiliated college a person having corresponding right may be entitled to seek mandamus. It cannot be said in absolute terms that a writ petition is not maintainable against a private aided college even if it is a minority institution but the duty sought to be imposed upon a private body through mandamus must be of a public nature otherwise the affected employee will be denied relief in writ jurisdiction. The law laid down by the Apex Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others (supra) is based upon distinction between private rights and duties on the one side and rights and duties of public nature on the other side. It has been established by a long line of precedents that writ jurisdiction provides remedy in matters relating to public domain and for enforcement of rights flowing from Constitution or Statutes. In our view the term--"writ petition is not maintainable" is not fully apt rather proper expression should be--"writ shall not lie" when a writ petition is filed for seeking enforcement of duties other than public duties against a person or authority which is not "State" within Article 12 of Constitution."

Thus, in the light of the law laid down by the Division Bench in the case of Santosh Kumar (supra), it has to be held that the writ application will not lie against the decision of the Managing Committee either advertising the post of Headmaster or even appointing Lata Kumari as Acting Headmistress.

This Court would, however, fail in its duty if it does not notice one more submission of Mr. Jha as with regard to applicability of the Right of Children to Free and Compulsory Education Act, 2009. The aforesaid Act first of all only envisages a right to every child of age of six to fourteen years to have free and compulsory education in lower school till completion of elementary education. It, therefore, does not apply to the high school in which the petitioner is working because in such school, the teaching is being done up to +2 level whereas the ambit of the 2009 Act is only up to Class-8. Secondly, the restriction put under Section 21 with regard to constitution of School Management Committee in no way would be of any help to the case of the petitioner because if the petitioner has any grievance against the Managing Committee, his remedy will be before the appropriate civil court for declaration that the Managing Committee as constituted by Arya Pratinidhi Sabha is not in accordance with the provision of 2009 Act. In this writ application, the petitioner cannot indirectly question the constitution and/or function of the Managing Committee specially when he himself has accepted the authority of the Managing Committee by submitting his explanation and also accepting its orders way back in the year 2008 vide Annexure-F & G to the counter affidavit already quoted above.

As a matter of fact, even the reliance placed by the learned counsel for the petitioner on the provision of Bihar Rajya Vidyalaya Shikshak & Karamchari Shikayat Nivaran Niyamawali, 2013 for redressal of his grievance against the order passed by the Director, Secondary Education dated 20.1.2014 will be of no avail because under Rule 13, it is only a final order passed by the authority which can be made subject matter before the appellate authority constituted by the notification No. 1880 dated 20.12.2013.

As noted above, the order dated 20.1.2014 passed by the Director, Secondary Education in terms of Section 18(chch) is appealable before the Departmental Secretary and if the petitioner has not moved before the Departmental Secretary in appeal, he cannot be allowed to make premium by placing reliance on the provision of aforesaid Bihar Rajya Vidyalaya Shikshak & Karamchari Shikayat Nivaran Niyamawali, 2013. Thus, for the reasons indicated above, this Court does not find any merit in this application. It is, accordingly, dismissed.