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PATNA HIGH COURT
S.B.Sinha and I.P.Singh JJ.
Madhuri Kumari
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 8408 of 1992 ;
Decided On : DECEMBER 17, 1992
BIHAR NON-GOVERNMENT SECONDARY SCHOOLS (TAKING OVER OF MANAGEMENT AND CONTROL) ACT, 1982 - SECTION 4(3), 15, 16, 21 - RULES 3, 4, 6, 7, 20(3), 21 - PROMOTION TO THE POST OF HEADMASTER IN NATIONALISED SCHOOLS - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioner, an Assistant Teacher at Jawahar Kanya Uchch Vidyalaya, sought regularisation as Head Mistress. She had been acting as Headmistress since 1980 but her claim was rejected as she did not meet the criteria for appointment as founder Headmaster, lacking the requisite experience of seven years from the date of recognition of the school.
Finding of the Court:
The court held that the petitioner's claim for regularisation could not be granted as it would violate the statutory rules and Article 309 of the Constitution. Regularisation cannot be a mode of recruitment, and recruitment cannot contravene statutory rules or Article 16 of the Constitution.
Issues: 1. Whether the petitioner fulfilled the criteria for appointment as founder Headmistress? 2. Whether the petitioner's claim for regularisation as Head Mistress could be granted?
Ratio Decidendi: 1. The court interpreted the relevant statutory provisions and rules governing the promotion and appointment of Headmasters in nationalised secondary schools. 2. The court held that the petitioner did not meet the criteria for appointment as founder Headmaster as she lacked the requisite experience of seven years from the date of recognition of the school. 3. The court further held that regularisation of the petitioner's services as Head Mistress would violate the statutory rules and Article 309 of the Constitution.
Final Decision: The court dismissed the petitioner's application, but directed that her claim for appointment as Headmistress be considered along with other eligible candidates in accordance with the statutory rules and the observations made in the judgment.
S. B. Sinha, J.
1. In this application the petitioner has sought for issuance of an appropriate writ for quashing an order contained in Memo no.1703 dated 28-7-1992 whereby her claim for the post of Head Mistress jawhar Kanya Uchch Vidyalaya Jhing Nagar, Bihar Sharif Nalanda, has been rejected and also for issuance of a writ of mandamus commanding upon the respondents to regularise her services as Head Mistress in the aforementioned school.
2. The fact of the matter lies in a very narrow compass.
3. The Jawahar Kanya Uchch Vidyalaya was established in the year 1972. The petitioner was appointed as an Assistant Teacher on 1-1-1972. The said school has been temporarily recognised by the Secondary School examination Board and the permanent recognition was therefor granted on 1-9-1979. The management of the said school in terms of the provisions of the Bihar Non-Government Secondary Education (Taking over of management and control) Act, 1982 has been taken over with effect from 1-9-1979.
4. According to the petitioner, one Smt. Savitri Kutnari was the incharge Headmistress of the said school. The petitioner was therefore directed to act as Acting Headmistress by an order dated 16-8-1980 as contained in Annexure 3 to the writ application.
5. By an order dated 30-12-1980 as contained in Annexure 4 to the writ application, the petitioner was directed to continue to act as Headmistress of the said school till permanent appointment of the Head Mistress is made therein.
6. On or about 6-6-1985 the petitioner filed an application before the respondent No.4 for appointing her on the post of Headmistress of the said school (Annexure 5 ). The District Education Officer, Nalanda also submitted a report to the respondent No.4 recommending the case of the petitioner for appointing her as Acting Headmistress. Thereafter the service records of the petitioner and other eligible teachers were called for which had been sent to the respondent No.3 by the respondent No.2 by his letter dated 22-11-1991 (Annexure 9 ).
7. By reason of the impugned order dated 28-7-1992 as contained in annexure 10 to the writ application the petitioners claim has been rejected.
8. In this case a counter affidavit has beed filed on behalf of the respondents. In the said counter affidavit it has been stated that the school in question was opened and partially recognised from 1-5-1978.
9. According to the respondents the claim of the petitioner was rejected on the ground that she did not fulfil the criteria for appointment as founder Headmaster as she did not have the requisite experience of seven years from the date of recognition of the said school.
10. Mr. Ram Pravesh Sharma, learned counsel appearing on behalf of the petitioner has raised a short question in support of this application. The learned counsel submitted that the petitioner has been continuing to act as Headmistress incharge of the school in question for a long time and as such there is absolutely no reason as to why her services could not be regularised.
11. The learned counsel in support of this contention has strongly relied upon a decision of the Supreme Court of India in N. S. K. Nayar V/s. Union of India, AIR 1992 SC 1574.
12. In this case the services of the teaching and non-teaching staff working in the said school had been taken over with effect from 1-9-1979. Admittedly at the material time Shrimati Sabitri Kumari was the Incharge headmistress and she went on leave with effect from 16-8-1980.
13. Although according to the petitioner, the said Srimati Sabitri devi had been placed under suspension it is not known as to what order has been passed in her case in the disciplinary proceeding against her. So long the aforementioned Sabitri Devi services had not been terminated, the post of Headmistress of the said school did not fall vacant. It is, therefore, not a case where the post of Headmaster of the school fall vacant prior to 2-10-1980. In this view of the matter, therefore, the school cann
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