ORDER
Praba Shankar Mishra, J.
1. The petitioner has moved this Court under Article 226 of the Constitution of India for a Writ of Mandamus to direct the respondents to pay the arrears of salary with effect from 21-5-1977, on account of the services rendered by him in the Balika Uchcha Vidyalaya, Bariarpur, Monghyr, and for a further direction to confirm and approve his appointment as an Assistant Teacher in the said School with effect from the date of his appointment by the Secretary of the Managing Committee of the School.
2. The petitioner applied, as stated in the writ application, in response to an advertisement dated 28-5-1976, published in the local newspapers for the post of a permanent History Teacher in the Balika Uchcha Vidya-laya, Bariarpur, Monghyr. A copy of his application for the said post advertised on 28-5-1976 is Annexure 1 to the writ application. According to him he graduated with History Hons. in the year 1968 from the Bhagalpur University and did his Teachers Training course from the said University in the year 1970. He was fully qualified for the post of a teacher in the School. Accordingly, he was called for interview and the Secretary of the Managing Committee of the School gave to him a letter of appointment against a sanctioned post of the Scfeool on the Kothari scale of pay. He joined the School on 21-6-1976. The Managing Committee of the School approved his appoint-ment at its meeting dated 30th May, 1976 –vide its resolution No. 3. Yet at another meeting dated 4-11-1977 the Managing Committee regularised the petitioner’s appointment as the permanent teacher of the School. A recommendation was made to the Board of Secondary Education for payment of his salary as per rules admissible under the Kothari Commission which was being paid to other efficient teachers of different schools.
The Director of the Board of the Secondary Education examined all the records of the petitioner and held in his favour. The Chair-man of the Board communicated his deci-sion to the District Inspectress of Schools (the respondent No. 5) and on 5-10-3977 an office order was issued by the respondent No. 5 to the effect that the provisional appointment of the petitioner in the school vide Resolution No. 3 dated 31-5-1976 of the Managing Committee of the School was approved and the petitioner would be entifled to the scale of pay of a teacher as recom-mended by the Kothari Commission. The said letter of approval is Annexure 3 to the writ application.
3. The petitioner has alleged that he was
paid a sum of Rs. 3,340/- towards his salary in the month of Nov., 1977, against the claim for the period from 21-6-1976 to 20-5-1977 and for the rest of his claims he was asked to writ. The petitioner, however, con-tinued his teaching work in the school, as usual, although no emoluments were paid to him. He made several requests for the pay-ment of the arrears as ALso the current salary but to no effect.
4. On 30-5-1973 he sent a representation to the respondent No. 1 (the Special Secre-tary, Department of Education, Government of Bihar) stating therein that he was not paid his salary from June, 1977 and his current salary has also not been paid to him. He made yet another representation on 15-8-
1978 and also personally met the respondent No. 1 and acquainted him with the facts of the case. On 20-10-1978 he filed a fresh re-presentation but no heed, however, was paid by the respondents to any of the representa-tions by the petitioner. The petitioner met the Special Secretary (the respondent No. 1)
on 1-12-1978 and requested him to take necessary action. He also met the Chairman of the Board of the Secondary Education on 2-12-1978, who told him that necessary orders would be passed in his case in due course. When nothing, however, materialised, the petitioner filed yet another application addressed to the Secretary of the School on 11-1-1979 for payment of his salary. The Secretary of the school forwarded the application of the petitioner to the Board of Secondary Education for the needful. He waited for some action upon his representation but in vain. He came to Patna in the month of August, 1979 to know the position and met the respondents 1, 2 and 3, but with no tangible result. On 30-11-1979 he
again sent a letter of reminder to the respon-
dent No. 3 giving all the details of all the scales but received no reply to this representa-
tion as well.
5. On 25-11-1980, an Ordinance was pro-mulgated to the effect that the non-Govern-ment High Schools were taken over by the State Government with effect from 2-10-1930. Petitioner’s school was also taken over under the said Ordinance. Even after the take over of the school the petitioner continued his efforts and in June, 1980, he filed an application before the respondent No. 2. On 6-3-1984 and 27-3-1981 he sent further representations to the respondent No. 2 on the subject. All the efforts of the petitioner, however, failed to bring any re-sult in his favour.
6. In support of his allegation that the petitioner had always been teaching in the school fee has brought on the record a recommendation/permission granted to him by the Sub-divisional Education Officer, Monghyr, which is contained in Annexure 13 of the writ application. This shows that the petitioner who wanted to improve his educational qualification applied to the Sub-divi-sional Education Officer for permission and the Sub-divisional Education Officer granted permission to him to appear in the M. A. examination. The story of the petitioner’s making representations did not end, however, and even in the year 1981 he made representations on 22-10-1981, 29-11-1981 and 2-12-1981. He has made a grievance before this Court that despite a valid appointment in his favour as an Assistant Teacher of the School and despite the fact that he has been continuously teaching in the School, he has not been paid his emoluments. He has also alternatively made a grievance that after the take ewer the respondents apparently committed an error in not acknowledging the ap-pointment of the petitioner as a teacher in the school from before the take over and in not approving his appointment after the take over as required under the law.
7. It is, undoubtedly, a case in which people, to, quote the words of Mr. Justice V. R. Krishna Iyer, as he then was, ‘insuffi-ciently aware of the kaleidoscopic legislative changes and crucial statutory consequences on the one hand and curiously indifferent to their own embarrassingly ambivalent dealings seemingly legitimating the permanent status’ of a teacher have created an impression that the petitioner got a valid appointment as a teacher in the school. It is evidently a case of complete ignorance of law in granting to the petitioner a certain appointment, provisional though it was, by the Secretary of the Managing Committee of the school. He (the Secretary) was not competent to give any appointment to the petitioner in May, 1976. The law bad undergone a drastic change by then. Even the Managing Committee of the School had been divested of the powers to make the appointments of teachers. Various resolutions of the Managing Committee of the School as alleging by the petitioner, re-gularising his provisional appointment and giving to him a substantive appointment, are adopted in violation of or in ignorance of the law in force. In different approach in the matter of appointment of a teacher is reflected in the conduct af the Managing Committee and/or the Secretary of the school. Same is the position when one looks to the order of the Chairman of the Board, if he really passed the order as alleged by the petitioner, and the communication of the Inspectress of Schools, as contained in Annexure 3. At the time of the petitioner’s appointment the law in force was one as contained in the Ordinance promulgated on 22-4-1976 (The Bihar Madhyamic Shiksha Board, Dwitiya Adhyadesh, 1976). Chapter VI of the Ordinance provided a complete procedure for the appointment of a teacher repealing the earlier laws on the subject. The Managing Committee of the School and/or the Secre-tary of the School figured nowhere in the law as competent authorities to make the appointments except under Sub-section (5) of Section 44 of the Ordinance, where a provision was made for the appointment to be made by the Managing Committee of the School for a period of six months only and that also with the prior ap-proval of the Sub-divisional Education Offi-cer. In the instant case, it is obvious that the petitioner was not given his initial appointment by the Managing Committee. It (the managing committee) came, however, to consider the petitioner’s case for regularising his appointment made by the Secretary of the Managing Committee at its meeting held on 31-5-1976. This resolution of the Managing Committee finds mention in the so-called approval order of the Inspectress of Schools, as contained in Annexure 3 to the writ application. It is obvious that even the Managing Committee of the School could not make the appointment even for a period of six months, without the prior approval of the Sub-divisional Education Officer. Learned counsel for the petitioner at this stage has tried to suggest that the Sub-divisional Education Officer was the competent authority for the boys schools only and not for the girls school and for that purpose he drew my attention to the 1972 Rules where certain provisions in this regard were made. It does without saying that by the provisions made under the Ordinance for the appointment of a teacher in a High School, the provisions, as contained in the rules of 1972, stood repealed. Even assuming for a moment that the Inspectress of the Schools still continued to be the competent authority, a post-approval cannot be taken to be an ex facto approval. Thus, there has been no valid approval to the appointment of the petitioner by any competent authority.
8. Learned counsel for the petitioner has made, if I may say so with respect, a very sincere argument based upon the facts that all concerned accepted that the petitioner was a teacher appointed in the school in June, 1976 and they took work from him, and always acknowledged him as the actual teacher of the school. He has submitted that having taken work from him, they are liable to pay to the petitioner his emoluments. There is no reason for them now not to accept the petitioner’s claim that he was one already appointed in the school from before the take over of the school. This argument is, undoubtedly, very attractive but is in the teeth of a direct authority of the Supreme Court of India in the case of University of Kashmir v. Dr. Mohd. Yasin, (AIR 1974 SC 238). In the case before the Supreme Court, the Vice Chancellor, exercising the powers vested in him appointed a teacher in the service of the University. The Vice-Chancellor could make the appointment only for a period of six months. However, even after the expiry of the period of six months, the teacher concerned was continued and he worked in the capacity of a teacher by virtue of the appointment given tc him by the Vice-Chancellor of the University. An argument, similar to one advanced before me, was made before the Supreme Court and the Court answered the contention by holding, “when a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement dehors the provisions and powers under the Act would be subversive of the statutory scheme regarding appoint-ment of officers and cannot be countenanced by the Court”. The Supreme Court noticed that the power to make appointment of a teacher was vested in the University Council only and the manner of its exercise had been carefully regulated by the statutes. The Vice-Chancellor’s administrative action in the matter was a drift. The Supreme Court
held that on such administrative drift theory of factum valet could not be applied.
9. I have noticed above the statutory
provisions as contained in the Ordinance in
force (which provisions were continued
under successive Ordinances as also under
the 1976 Act until repealed by the take over
Ordinance in Sept., 1980) did not give any
power either to the Secretary or the Manag
ing Committee of the School to make the
appointment of a teacher in a High School.
I have also noticed that there were orders
made by the Board and/or Inspectress of
Schools and other Officers of the Depart
ment of Education which were glaring ex
amples of ignorance of law. The petitioner
undoubtedly has laboured under the impres
sion that he was appointed as an Assistant
Teacher in the School by the competent
authority and his appointment was approved
by the competent authority but as pointed
cut in the case of University of. Kashmir,
the appointment of the petitioner was always
stricken by the vice of the statutory viola
tion which cannot be cured by the acts of
administrative drifts.
10. On the facts and in the circumstances of the case, I am of the view that the petitioner has got no case for interference by this Court and a mandamus cannot issue for either of the reliefs claimed by him in the present writ application. This application, therefore, must fail.
11. In the result, this application is dismissed. On the facts and in the circumstances of the case, there shall be no order
as to costs.
12. Learned counsel for the petitioner, however, has stated that the petitioner has become overage for any other employment. His removal from the service of the school shall result in hardship which may cause starvation to him and his family. If the petitioner makes a proper representation before the competent authority, he may be given sympathetic considerations and if possible may be given any alternative service.
