{"id":59891,"date":"1993-02-17T00:00:00","date_gmt":"1993-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-keshwar-singh-vs-the-state-of-bihar-and-ors-on-17-february-1993"},"modified":"2016-03-30T04:45:47","modified_gmt":"2016-03-29T23:15:47","slug":"ram-keshwar-singh-vs-the-state-of-bihar-and-ors-on-17-february-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-keshwar-singh-vs-the-state-of-bihar-and-ors-on-17-february-1993","title":{"rendered":"Ram Keshwar Singh vs The State Of Bihar And Ors. on 17 February, 1993"},"content":{"rendered":"
Patna High Court<\/div>\n
Ram Keshwar Singh vs The State Of Bihar And Ors. on 17 February, 1993<\/div>\n
Equivalent citations: 1993 (2) BLJR 1091<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.B. Sinha, J.<\/p>\n
1. This application was initially directed against the orders dated 25-1-1983 and 31-7-1980 as contained in Annexures-1 and 2 to the writ application whereby and where under the respondent No. 4 was promoted as Headmaster Incharge for a period of seven months and the petitioner was deputed to Akakchi Uchha Vidyalaya, Hazaribagh respectively.\n<\/p>\n
2. The petitioner thereafter filed an application for amendment of the writ application questioning an order dated 25-2-1987 which is contained in Annenure-9 thereto whereby and where under the respondent No. 4 was promoted to the post of Headmaster of High School Maheshara Hazaribagh, (hereinafter referred to as the ‘School’) with effect from 25-1-1983.\n<\/p>\n
3. The petitioner claims himself to be the founder Headmaster of the School. According to the petitioner he was appointed as an Assistant Teacher of the said School by the then Managing Committee of the School and was appointed as a Headmaster with effect from 21-1-1968.\n<\/p>\n
4. The respondent No. 4 was appointed by the Managing Committee as Assistant Teacher and allegedly at that point of time, the petitioner was a member of the said Managing Committee as Headmaster of the said School. The school was granted partial recognition by the Bihar Secondary Education Board on 1-1-1969, and was granted full recognition in the year 1979.\n<\/p>\n
5. By an order dated 7-12-1978 the Chairman of the Board issued an order appointing respondent No. 4 as a Headmaster of the School. The petitioner by way of a representation lodged his protest against the said order but no order was passed by the Board thereupon.\n<\/p>\n
The petitioner thereafter filed a suits a against the said order in the Court of Munsif, Hazaribagh being Title Suit No. 7 of 1979 and the said suit was ultimately dismissed for default on 7-8-1981.\n<\/p>\n
6. In the meanwhile, the petitioner by reason of the impugned order dated 31-7-1980 was deputed to Sri Krishna Arakshi Bal Vidhalaya, Hazaribagh.\n<\/p>\n
7. The petitioner has contended that both the petitioner and the respondent No. 4 were drawing the same scale of pay Rs. 415 to 745 which was made applicable with retrospective effect from 1978 by an order passed in the year 1981.\n<\/p>\n
8. Two counter-affidavits have been filed in this case on behalf of the respondent No. 3 and another on behalf of the respondent No. 4.\n<\/p>\n
9. In the aformentioned counter affidavits it has been denied that the petitioner was the founder Headmaster of the said School. It has been contended that on 20th January, 1962, the Sub-Divisional Educational Officer inspected the School wherein although the name of all teaching staff were noted but petitioner’s name did not figure therein.\n<\/p>\n
10. It has further been stated that the Sub-Divisional Officer inspected the School and submitted a report dated 11-3-1969 wherein the name of the petitioner appears at serial No. 3 whereas the name of the respondent No. 4 appears at serial No. 1 thereof.\n<\/p>\n
11. It has further been stated that the respondent No. 4 a trained graduate with Honours whereas the petitioner was a simple graduate. Admittedly the petitioner passed the short teachers’ training course only in the year 1975.\n<\/p>\n
12. It has further been contended that the respondent No. 4 put on a higher scale of pay drawing a salary of Rs. 185 per month whereas the petitioner had been getting the salary of Rs. 145.00 only.\n<\/p>\n
It has been contended that from a perusal of the impugned order dated 31-7-1980 as contained in Annexure-2 to the writ application also it would appear that the petitioner has been described as Assistant Teacher. The aforementioned reports dated 10-1-1962 and 11-3-1969 have been annexed with both the counter affidavit and marked was Annexures-A and B, thereto respectively.\n<\/p>\n
13. It has further been contended that Annexures-11 and cannot be relied upon as therein the petitioner’s name has been written therein as Ram Keshwar Prasad Singh whereas the petitioner is actually Ram Keshwar Singh.\n<\/p>\n
14. It has further been contended that the petitioner had not been attending the school regularly and in fact he had not attended school for a long period from 1-1-1979 to July, 1989 i. e. for 19th months as a result of which no leave was sanctioned and no salary has been paid to him.\n<\/p>\n
15. It has further been contended that prior to 30-10-1980, the respondent No. 4 was put in the selection grade scale of pay of Rs. 415 to 745 whereas the petitioner was in the scale of pay 387 of 600 prior to 30-10-1980.\n<\/p>\n
16. It has been contended that even after 30-10-1980 requisite weigh-tease was given to the respondent No. 4 and he had been getting a scale of pay of Rs. 957 per month whereas the petitioner was in the scale of Rs. 415 to 745 only.\n<\/p>\n
17. It has also been contended that at present the respondent No. 4 is getting a salary of Rs. 1300 per month as would appear from Annexure-C\/1 to the counter Affidavit filed on behalf of the respondent No. 4.\n<\/p>\n
18. It has further been contended that selection grade which is equivalent to Post Graduate scale of pay was given to the respondent No, 4 in the year 1974 by an order dated 18 9-1974 as contained in Annexure-D to the said counter affidavit.\n<\/p>\n
19. The respondent No. 3 in his counter affidavit has contended that prior to issuance of the impugned order as contained in Annexure-1 to the writ application the cases of all eligible persons possessing the requisite qualification for holding the post of Headmaster were duly considered and thereafter the respondent No, 4 was appointed as Headmaster as he having higher qualification and having been drawing the higher scale of pay.\n<\/p>\n
20. A supplementary counter affidavit has been filed on behalf of the respondent No. 4 on 13-3-1993 (sic) wherewith a certificate of Shri Dashrath Ram, Ex-Secretary, Maheshra High School dated 25-12-1982 as contained in Anne sure-D thereto has been annexed for the purpose of showing that Ram Keshwar Singh was not appointed as a permanent Headmaster of the School from March 1974 to 1978.\n<\/p>\n
21. From a perusal of the aforementioned certificate, it appears that the aforementioned Dashrath Ram, claimed himself to be working as Headmaster from January, 1962 to 27th January, 1968, on which date he submitted his resignation.\n<\/p>\n
22. The petitioner has filed rejoinder to the counter affidavit filed on behalf of the respondent Nos. 3 and 4.\n<\/p>\n
The petitioner in the said rejoinder has brought certain documents to show that he was appointed as an Assistant Teacher in January, 1962 and had been functioning as Headmaster since 1968.\n<\/p>\n
23. It has been contended that the petitioner was appointed as In-charge Headmaster in the year 1968 and thereafter as a permanent Headmaster on 25-2-1968. The said office orders are contained in Annexures-12 and 13 to the writ petition.\n<\/p>\n
24. It has been contended that the District Education Officer sent a report on 27-12-1978 to the then Secretary of the Bihar Secondary Education Board whereas the petitioner was wrongly shown as Acting Headmaster, although he was the Headmaster of the School. The said letter is contained in Annexure-14 to the said reply.\n<\/p>\n
25. A supplementary affidavit has been filed by the petitioner, in reply to the counter affidavit filed on behalf of the respondent No. 4 by the certain documents have been brought on records for the purpose of showing that even the respondent No. 4 recognised the petitioner as Headmaster. The said documents are contained in Annexures-15, 16 and 17 series.\n<\/p>\n
26. The respondent No. 4 has filed a reply to the reply of the said counter affidavit on 3-2-1993 wherein it has been contended that the petitioner had been working as Incharge Headmaster during the temporary absence of the Headmaster. It has been stated that Annexures-10, 12 and 13 of the reply to the counter affidavit are forged documents.\n<\/p>\n
27. It has been contended that the said documents although purported to have been issued by Shri Subash Mishra, the then Secretary of Bihar Education Board, but he had sworn an affidavit, to the effect that his signature has been forged and he never signed Annexures-10, 12 and 13. A copy of the said affidavit is contained in Annexure-P to the said reply.\n<\/p>\n
28. It has been further contended that the respondent No. 4 have been wording as Headmaster with effect from 25-1-1983 and he has been confirmed in the said post with effect from 25-1-1987.\n<\/p>\n
29. Mr. Rajendra Prasad Singh, learned Counsel appearing on behalf of the petitioner, apart from drawing my attention to the statements made in the writ petition supplementary affidavits, and replies to the counter affidavit filed on behalf of the petitioner which have been referred to hereinbefore in details raised two contentions in support of this application.\n<\/p>\n
30. The learned Counsel firstly submitted that by way of clarification of Rule 5 of G.O. No, 517, dated 7-9-1955 by letter No, 643-741, dated 10th January, 1963 which appears at page 432 of A Compendium to Important Orders and Circulars on Bihar Secondary Education by Sri J.P. Singh wherein it has been stated that the appointment of teachers of the school which was accorded first recognition by the Board of Secondary Education Bihar, should be taken to have been approved by the department as envisaged under the rule.\n<\/p>\n
However, in that letter itself has been stated of course, any change in the teaching staff, thereafter, should necessarily be governed by the said rule.\n<\/p>\n
31. Rule 5 of the aforementioned rules for appointment, Departmental approval, Discharges Dismissal and Appeal of teachers of non-Government Secondary Schools issued by the Education Department, dated 7-9-1955 reads thus:\n<\/p>\n
 The Managing Committee shall submit a copy of the advertisement, the applications received with a tabular statement and its recommendations to the Sub-Divisional Education Officer in the case of appointments of Assistant Teachers and to the D.E.O. in case of appointments of Headmaster, for approval. The D.E.O. or the S.D.E.O. as the case may be shall send his approval within a fortnight of the receipt of the proposal. If he differs from the recommendations of the Managing Committee, he shall record in writing the reasons for his difference. While recommending the Managing Committee shall submit three names for each post in order of preference recording reasons for the preference. The Managing Committee may appeal to the D.E.O. in case of difference of opinion with S.D.E.O. in matters of appointment of Assistant Teachers and to the President Board of Secondary Education in the case of difference of opinion with D.E.O. for the appointment of Headmaster. The decision of the D.E.O. or the President, as the case may be, shall be final. A copy of the joining report of the teacher or the Headmaster is to be submitted to the approving authority within a month.\n<\/p>\n
32. Rule 2 of the aforementioned Rules provides for qualification of the post of Headmaster which reads thus:\n<\/p>\n
 Only graduates who are trained and who possess five years’ teaching experience, or untrained graduates of approved merit with ten years’ teaching experience, can be considered for appointment as Headmaster. While making appointments to the post of Headmasters, the interest and work of the candidate in implementation of the new course of studies and the maintenance of Assessment Record shall be taken into consideration. All appointments to the teaching staff shall be on probation for a year. The probationary period, however, is not to exceed more than two years. The Headmaster shall be confirmed only when he has passed departmental examination as laid down in Article 265(5)(ii) of the Bihar Education Code. If the Headmaster is untrained, he will have to undergo a Short Training Course for at least six weeks before confirmation. An Assistant teacher shall be confirmed only when be has passed the half yearly examination or has attended a short Training Course in teaching for at least six weeks. Graduate equivalents who have passed an examination in English of B.A. standard may also be considered for appointment as Headmasters provided they are otherwise qualified as laid down in this paragreph.\n<\/p>\n
33. Rule 1 of the said Rule provides that all appointments to the teaching staff of the High School shall be made after due advertisement in the Newspaper except in case of short-term appointments for three months, which may be made as a result of local advertisement.\n<\/p>\n
34. From the aforementioned rules, therefore, it is evident that on his own showing the petitioner was not eligible for appointment as Headmaster of the School in question. The petitioner has contended that he was appointed as an Assistant Teacher in the years 1961. Admittedly he was not a trained teacher. He, therefore, could not have been appointed as a Headmaster of the School on 21-1-1968. Although in terms of the aforementioned rule even an untrained graduate could be appointed as a Headmaster, but therefor the candidate was required to be a graduate of approved merit with 10 years teaching experience. There is nothing of record to show that the petitioner was a graduate of approved merit but in admittedly in 1968 he did not possess 10 years’ teaching experience.\n<\/p>\n
35. Further in terms of Rule 1 of 1955 aforementioned, the appointment of teaching staff was required to be made after due advertisement in the newspaper. The petitioner does not contend in the writ petition nor the purported resolution of the Managing Committee as contained in Annexures-11 and 12 to the reply show that the petitioner was appointed after issuing advertisement in the Newspapers. Further there is nothing on records to show nor the petitioner has made any averment in the writ petition that in the matter of his appointment in the post of Headmaster. Rule 5 of 1955 rules have been complied with.\n<\/p>\n
36. It may be noticed here that in case of appointment of the Headmaster approval of the District Education Officer was required to be taken, but the same does not appear to have been done. It is, therefore, clear that on his own showing the petitioner was not and could not have been appointed as permanent Headmaster of the School.\n<\/p>\n
37. Apart from the aforementioned fact, as noticed hereinbefore, evidently there exists a disputed question of fact as to whether the letters of appointment of the petitioner as a Headmaster Incharge and Headmaster dated 21-1-1968 and 1-2-1968 as contained in Annexures-11 and 12 are genuine documents or not.\n<\/p>\n
It may be mentioned that the petitioner has not filed any reply to the affidavit filed by the then Secretary (Sri Subash Mishra) which is contained in Annexure-D to the Supplementary Counter affidavit of the respondent No. 4.\n<\/p>\n
The first contention raised by Mr. Singh to the effect that upon partial recognition of the school in question the petitioner must be held to have been duly appointed as Headmaster of the school must necessarily fail.\n<\/p>\n
38. Mr. Singh, thereafter contended that as admittedly the School in question was taken over in terms of the provisions of Bihar Non-Government Secondary School (Taking over of Management and Control) Act, 1981 and in view of the facts that the posts of Headmaster was vacant as on 2-10-1980, the petitioner being the senior most teacher should have been appointed as Headmaster in terms of the circular letter Nos. 510 and 511 dated 20.11-1981.\n<\/p>\n
39. Admittedly the Chairman of the Board appointed the respondent No. 4 as an Acting Headmaster in 1978. The petitioner riled a suit questioning the said order, but the said suit admittedly has been dismissed for default.\n<\/p>\n
40. It is further evident that the State thereafter in exercise of his power conferred upon it under Section 10(9) of the 1981 Act appointed the respondent No. 4 as Headmaster Incharge.\n<\/p>\n
41. The said order was issued by the State in terms of circular letter No. 510 dated 20th November, 1981. By an order dated 31st July, 1080 i.e. prior to 2-10-1980 the petitioner was deputed to another school by the Bihar Secondary Education Board. Although the petitioner has questioned the said order in this writ application, in my opinion, he cannot be permitted to do so after such a long lapse of irate, as the writ petition has been filed only on 16-3-1983. Admittedly the said order had been acted upon.\n<\/p>\n
However, there cannot be any doubt that despite the said order the petitioner was entitled to a consideration for appointment as Headmaster of the said School pursuant to the aforementioned Circular letter 510, dated 20th November, 1981.\n<\/p>\n
42. In Deobansh Pandey v. State of Bihar reported in 1993 PUR 221 a Division Bench of this Court considered the scope and purport of the aforementioned Circular letters No. 510 and 511. In terms of the Circular letter No. 511, dated 20th November, 1981 a founder Headmaster has been defined to mean such teacher who from the date of the establishment of the school had continuously been serving the said school and who holds the requisite minimum qualification of Headmaster.\n<\/p>\n
According to the respondent the school was established in the year 1960. There also appears to be some dispute as to whether that the petitioner was appointed as Assistant Teacher on 26-3-1961. But assuming that the petitioner was appointed as an Assistant Teacher on that date, he was evidently not appointed at the time of establishment of the school itself.\n<\/p>\n
43. Further as noticed hereinbefore the respondents have stated on oath that the petitioners had remain absent from the School without obtaining leave from July, 1979 to August i.e. for a period of by months. The Respondents have further contended that neither the said period of leave has been regularised nor the petitioner has been paid any salary for the said period. Thus the petitioner also is not a teacher who could the considered to be a founder Headmaster as he has not rendered his service continuously in the school.\n<\/p>\n
44. Further as indicated hereinbefore, the petitioner had also been deputed to another school by the Chairman Bihar Secondary Education Board by an order dated 31st July, 1980 as contained in Annexure-2 to the writ application. On that account too, it must be held that the petitioners did not render continuous service in the said school upto 2-10-1980 when the post of Headmaster fell vacant.\n<\/p>\n
In any event, as noticed hereinbefore, it has been contended by the respondent that the respondent No. 4 had all along been getting a higher scale of pay and he possessed a higher qualification since his appointment in the school in question.\n<\/p>\n
45. The respondents, have therefore, for valid reason treated the respondent No. 4 as the senior-most teacher of the school on 2-10-1980.\n<\/p>\n
46. For the reasons aforementioned, the petitioner is not entitled to any relief in this writ application.\n<\/p>\n
47. This application is accordingly dismissed.\n<\/p>\n
48. However, before parting with this case, it may be mentioned that as she petitioner is now qualified to be considered for appointment in the post of Headmaster, his should be considered along with other eligible candidates in accordance with the provisions of the said Act and the rules framed thereunder.\n<\/p>\n
49. In the facts and circumstances of the case, there Will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Ram Keshwar Singh vs The State Of Bihar And Ors. on 17 February, 1993 Equivalent citations: 1993 (2) BLJR 1091 Author: S Sinha Bench: S Sinha JUDGMENT S.B. Sinha, J. 1. This application was initially directed against the orders dated 25-1-1983 and 31-7-1980 as contained in Annexures-1 and 2 to the writ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-59891","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nRam Keshwar Singh vs The State Of Bihar And Ors. on 17 February, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-keshwar-singh-vs-the-state-of-bihar-and-ors-on-17-february-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Keshwar Singh vs The State Of Bihar And Ors. on 17 February, 1993 - 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