Teachers appointed in schools taken over by the State Government must have the qualification of trained graduate on the date of take over in order to continue as teachers.

Prabha Shanker Misra, J.

1. This application could have been disposed of by a direction to the respondents to consider the case of the petitioners in accordance with the Governments decision incorporated in letter No. 3464-3514, dated 25-5-1984 of the Director (Secondary Education)-cum-Special Secretary, Department of Education, Government of Bihar, but learned Counsel, appearing for the respondents, has resisted its disposal by any consent order and hence the judgment.

2. The petitioners, it is not in dispute, are Assistant teachers in High School, Choukhanda, Chhitauli, police station Sasaram, district Rohtas. They were appointed as assistant teachers on 1-1-1972 in the school which was established in November/December, 1971, and started functioning from 1-1-1972. Under the then existing law, the Board of Secondary Education had to examine the viability and compliance of the regulations by the management of the school and grant permission to establish and thereafter extend recognition to the school for Government aids. The school was, accordingly, given permission to establish in the year 1971 and was recognised by the Board vide its memo No. 29878-84, dated 7-12-1977. The Special Board (the committee to recommend for recognition), constituted by the Education Board in its report dated 30-3-1977 noticed the petitioners as founder teachers of the school with their respective qualifications of B. Sc. (Biology group), B. Sc. (Math, group) and B. A. (Hons.) and the fact that petitioner No. 1 had appeared in the B. Ed. examination and petitioner Nos. 2 and 3 had completed the training but their examinations were yet to he held. In Rule 5 of the Government order No. 5172, dated 7-9-1952 reiterated vide letter No. 643-741, dated 10-1-1963 a provision has been made to treat any founder teachers service approved with the recognition of the school. The petitioners, according to them, were entitled to hold their respective posts and were paid their salaries, accordingly.

3. On 9-8-1980, however, the Sub-divisional Education Officer addressed a letter to the Secretary, Bihar Secondary Education Board and forwarded the applications of the petitioners to the Board stating that with the recognition of the school, with effect from 7-12-1977, the petitioners should be considered for absorption as teachers. The Director-cum-Special Secretary replied to the effect that the Government order No. 757, dated 2-4-1980 extended recognition only to such teachers who were trained or had appeared in any training examination as students of a training college, which was recognised by the State Government and since the petitioners did not qualify under the said order of the Government, their services could not be recognised. In August, 1980, however, the management of the aided high schools were taken over by the State Government in terms of the Bihar Non-Government Secondary School (Management and Taking-over) Control Act, 1980. Government letter No. 756, dated 2-4-1980, referred to in the communication of the Director (Secondary Education)-cum-Special Secretary, categorised the untrained teachers as (1) the teachers serving in high schools recognised by 15-10-1977 and teachers who were undergraduate at the time of their appointment but had improved their qualification, to be recognised if they became trained in the session 1980-81 of the training course, and (2) untrained teachers appointed within the sanctioned strength and admitted to any Government teachers training college or whose result had not been published due to certain unavoidable circumstances, to be recognised with effect from the date they passed the teachers training examination. Apparently, the petitioners fell in the second category. They had been appointed within the sanctioned strength of the teachers in the school and were so found by the Special Board, but their services were not recognised.

4. In Om Prakash Choubey V/s. The Director (Secondary Education) cum-Additional Secr