JUDGMENT
B.P. Jha, J.
1. In an application under Articles 226 and 227 of the Constitution of India the petitioner prays that he should be appointed Head Master of T.K. Ghosh Academy and Annexure 4 be quashed.
2. I have been informed by learned Counsel for the parties that the State Government has decided to take over T.K. Ghosh Academy. In this connection Shri Prabha Shankar Mishra learned Counsel appearing on behalf of the Bihar Secondary Education Board (hereinafter referred to as the ‘Board’), refers to an annexure attached to the report submitted by the Chairman of the Board. In the present case the Chairman of the Board submitted a report to this Court in consequence of the order dated the 19th October, 1976 passed by this Court. In Its report the Chairman of the Board annexed an annexure. In that annexure, Shri Bhaskar Banerjee, Special Secretary to the Education Department informed the Chairman of the Board that the State Government had decided to take over T.K. Ghosh Academy. It is on the basis of this letter, learned Counsel for the parties- state that the State Government has decided to take over T.K. Ghosh Academy, Patna. If it is so, the present application becomes infructuous.
3. In the present case, I intend to lay down certain guidelines to the Board in connection with the appointment of the Head Master of the High School. Clause 43 of the Bihar Secondary Education Board, Second Ordinance, 1976 (Bihar Ordinance No. 124 of 1976) provides that the Board shall appoint Head Master on the basis of the recommendation obtained from the Secondary School Commission (hereinafter referred to as the ‘Commission’). In every case of appointment of a Head Master whether on the basis of promotion or on the basis of fresh appointment, the Board is required to obtain the recommendation of the Commission. The Board shall appoint Head Master on the basis of the recommendation of the commission. If the Head Master is appointed on promotion, the Board or the Commission will consider the seniority as the basis of the appointment. While considering seniority preference will be given to that teacher who has obtained earlier educational training after passing Bachelor of Arts or Master of Arts examination. If it is found that a certain teacher is seniormost teacher, he will be automatically selected for the post of the Head Master.
4. The commission or the Board can depart from the rule of seniority only on the grounds of incompetency. The teacher will be deemed to be incompetent on the following grounds :–(1) lack of administrative capacity, (2) indulgence in agitation or in politics, (3) indiscipline, (4) irregular in attending and teaching the students and (5) a man of doubtful character. Before appointing the Head Master, the Board should obtain that report from the District Education Officer or the Regional Deputy Director of Education in this connection. If the Board comes to the conclusion on the basis of the report that the
senior most teacher is incompetent for the post of a Head Master, the Board or the Commission will be justified in departing with the rule of seniority. In other words, ordinarily the principle of seniority-cum-merit should prevail in selecting a Head Master of the School.
5. I do hereby direct the Board, the Commission and other authorities to follow this guideline in appointing the Head Master of the School.
6. In the present case it is clear that the Government has decided to take over T.K. Ghosh Academy, Patna and as such the Director of the Public Instruction will consider the case of the contesting teachers for the appointment to the post of the Head Master. I do hereby suggest to the Director of Public Instruction to take the concurrence, if necessary, of the State Public Service Commission in selecting a candidate for the post of the Head Master. The case of the petitioner and other contesting persons including the intervenor should also be considered by the Government while appointing to the post of a Head Master. The State Government should also follow the guideline given by me in this case, if it is possible. The State Government – will be also at liberty to appoint any other person competent for the post,
7. In the result the application is disposed of in terms of the observations given above. The parties will bear their own costs.