Judgment:
J.N. Singh, J.
1. Heard learned Counsel for the petitioner and learned Counsel for the State.
2. Petitioner has filed this writ application for a direction to the respondents to make payment of his regular salary including arrears. He has also prayed for quashing of the order of the respondent Director, Primary Education dated 20.10.2001, as contained in Annexure-10, by which, after remand from this Court, claim of the petitioner has been considered and rejected.
3. Learned Counsel for the petitioner submits that the petitioner was appointed in the School in question i.e. Primary School, Raghopur Giripatti in Saharsa district on 1.6.1970, which was an aided school. The School was later on considered for take over under the policy decision of the Government and was finally taken over in 1973 with effect from 1.1.1971. He submits that the case of the petitioner was not considered for take over in 1973 when the school was taken over as he was untrained. He submits that the report of the Block Education Extension Officer dated 29.8.1995 and the report of the Sub-Divisional Education Officer dated 19.12.1988, annexed as Annexure-7 series, show that the petitioner was appointed in the School in 1970 and was working there since then. He submits that as the petitioner was appointed prior to 1.1.1971, there was no requirement of minimum eligibility criteria of having Degree of training for appointment as teacher.
4. However, since the case of the petitioner was not considered and he was not being paid his salary, he moved this Court through C.W.J.C. No. 3570 of 1998. The said writ application was disposed of by this Court by order dated 19.7.1999 (Annexure-9). This Court remitted the matter back to the Director, Primary Education to examine the case of the petitioner and pass appropriate orders in by learned Counsel for the State that prior to 1.1.1971 there was no bar in appointment of an untrained candidate as teacher. However, he submits that Government letter No. 1915 dated 31.7.1969, as contained in Annexure-B, clearly laid down that untrained teachers could be appointed in an aided school only after obtaining prior written permission from the Joint Secretary-cum-Additional Director, Public Education. He submits that the Director Primary Education while rejecting the application of the petitioner vide Annexure-10 has noticed this provision of law as contained in said letter dated 31.7.1969 and has found that prior permission of the Joint Secretary-cum-Additional Director, Public Education had not been obtained by the Management of the School at the time of appointment of the petitioner. He also submits that this clause of the said letter dated 31.7.1969 had not been taken into account by learned single Judge of this Court while delivering judgment as contained in Annexure-11. He submits that though an untrained candidate could be appointed as teacher, but in view of this clear provision in the said letter dated 31.7.1969, prior permission of the Joint Secretary-cum-Additional Director, Public Education was mandatory for the purpose.
5. Learned Counsel for the respondents has also referred to Annexure-A to the counter affidavit, which is a list of teachers working in different schools as on 1.4.1972, which were under consideration for take over. He submits that at that point of time i.e. on 1.4.1972 petitioner was not found working in the School and only one teacher, i.e. Ghanshyam Singh was found working in the said School. He also submits that the so called approval granted to the services of the petitioner by the then Director, Primary Education by Annexure-1 was conditional one. He submits that Annexure-1 itself shows that the service of the petitioner was approved only if the conditions shown in the said letter were found to be satisfied, which were (i) prior to 1.1.1971 petitioner was validly appointed; (ii) prior to 1.1.1971 he had qualification of matric untrained; (iii) his certificates of qualifications were found to be correct; (iv) he was working in the School regularly; and (v) as per students-teachers ratio, there was necessity of the post. He submits that the approvals granted by the then Director in 1988 to the services of many teachers and the conditions put by him were considered by the District Education Establishment Committee in its meeting dated 24.12.1989 and a list of teachers was prepared, who were finally found eligible for take over of their services. He submits that the said list does not contain the name of the petitioner as in 1972 itself it was found that the petitioner was not working in the School as is evident from Annexure-A itself. Therefore, he submits that the petitioner was not entitled for payment of his salary as his services were never taken over by the respondents and he was never found validly appointed and working in the School.
6. Rival submissions of learned Counsel for the parties raises serious disputed questions of fact. First fact which has to be established beyond any doubt is that the petitioner was appointed in the School in 1970 by the Managing Committee. Even if it is assumed that his not having qualification of training was not a bar for his appointment as teacher and therefore, he was eligible for appointment as an untrained teacher as per judgment of this Court, as contained in Annexure-11 and the other several judgments relied upon by learned Counsel for the petitioner, as per letter No. 1915 dated 31.7.1969, it is necessary to be established as a fact that prior written permission of the Joint Secretary-cum-Additional Director, Public Education was obtained for his appointment by the Managing Committee. The next fact which has to be established beyond any doubt is that since his appointment, petitioner had continued in service on regular basis. In 1973 when the School was taken over, services of the petitioner was not taken over. The question arises as to why petitioner moved this Court in 1998 and not before. There is nothing on record to show that the petitioner was agitating his claim anywhere else or had moved this Court prior to that. It cannot be expected that inspite of his services not being taken over at the time of take over of the School, he respect of his claim for salary. Accordingly, the Director, Primary Education considered the case of the petitioner and by the impugned order, as contained in Annexure-10, he has rejected his claim.
7. Learned Counsel for the petitioner submits that the Director, Primary Education has rejected the claim of the petitioner precisely on the ground that he was not trained at the time of his appointment. He submits that this issue stands settled by a judgment of this Court, as contained in Annexure-11, which was not taken into account by the Director while rejecting the claim of the petitioner. It is pointed out that in the said judgment different Government circulars were considered and it was held that prior to 1.1.1971 training degree was not a necessary eligibility condition for appointment of teachers in the Schools. He submits that in the teeth of this judgment, the impugned order of respondent Director is bad in law and fit to be quashed. In this respect, learned Counsel for the petitioner has referred to a large of other judgments also passed by this Court in the cases of Shshil Kumar Pandey v. The State of Bihar and Ors. C.W.J.C. No. 6328 of 1998 disposed of on 17.12.1999, Jitendra Sah v. The State of Bihar and Ors. C.W.J.C. No. 1913 of 1995 disposed of on 1.9.1995, Ganesh Sah and Anr. v. State of Bihar and Ors. C.W.J.C. No. 656 of 1999 disposed of on 27.3.2000, Uttam Prasad Yadav and Anr. v. State of Bihar and Ors. L.P.A. No. 110 of 2004 disposed of on 9.2.2004, Uttam Prasad Yadav and Anr. v. State of Bihar and Ors. C.W.J.C. No. 9533 of 2003 disposed of on 18.12.2003, Vivekanand Singh and Ors. v. State of Bihar and Ors. C.W.J.C. No. 7737 of 1991 & Other analogous cases disposed of on 27.4.1994, Lalan Kumar and Ors. v. State of Bihar and Ors. C.W.J.C. No. 5916 of 1995 and other analogous cases disposed of on 15.5.1998, to contend that even untrained teachers, who were appointed prior to 1.1.1971 were eligible for consideration for take over of their services and the said consideration could not be denied to them only on the ground that at the time of appointment they were untrained.
8. A counter affidavit has been filed in the case by the respondent District Superintendent of Education. It is not denied continued in service since then upto 1998 when he for the first time moved this Court. These facts raise serious doubt about the claim of the petitioner and the petitioner has not produced any material on record to clear these doubts and to establish his claim of a valid appointment and continuance in school since 1970 uninterruptedly by unimpeachable records.
9. In the circumstances, this Court is of the view that no indulgence can be granted to the petitioner in this case and he is not entitled for any relief as prayed for. This writ application is accordingly dismissed.