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HIGH COURT OF PATNA
Lalit Mohan Sharma & Birendra Prasad Sinha, JJ.
NAND KISHORE PRASAD MANDAL – Petitioner
VERSUS
PRESIDENT, BIHAR SECONDARY EDUCATION BOARD & OTHERS – Respondents
C.W.J.C. No. 2924 of 1975
Decided On : 1st December, 1976
BIHAR HIGH SCHOOLS (CONTROL OF ADMINISTRATION) ACT, 1960 - Repeal - Effect on Bihar High Schools (Conditions of Service) Rules, 1972 - Whether the Rules survived the repeal of the Act - Interpretation of Section 64(3) of Bihar High Schools (Control of Administration) Ordinance, 1974 - Whether the Rules were saved under Section 27 of the Bihar General Clauses Act - Scope of Section 38(a) of the Ordinance - Whether the term 'appointment' includes promotion - Whether the Managing Committee had the power to appoint a Headmaster after the Ordinance came into force - Procedure for appointment of teachers under Rule 4 of the Rules - Whether the Managing Committee followed the procedure - Whether the District Education Officer disapproved of the appointment of the petitioner as Headmaster - Legality of the ORDER :in Annexure 8.
Fact of the Case:
The petitioner, a teacher in a High School, challenged the ORDER :passed by the Bihar Secondary Education Board, quashing his promotion to the post of Headmaster. The petitioner claimed that the Managing Committee of the school had substantively promoted him to the post of Headmaster by a resolution and that the Board's ORDER :was illegal. The Board contended that the 1972 Rules, under which the petitioner was promoted, were repealed along with the 1960 Act and that the power to appoint teachers, including the Headmaster, exclusively vested in the District Education Officer or an officer authorized by the Board in accordance with the procedure laid down in Chapter VI of Ordinance 153 of 1974.
Finding of the Court:
The Court held that the 1972 Rules were repealed along with the 1960 Act and were not saved under Section 27 of the Bihar General Clauses Act. The Court interpreted Section 38(a) of the Ordinance to include promotion within the term 'appointment' and held that the Managing Committee had no power to appoint a Headmaster after the Ordinance came into force. The Court also found that the Managing Committee did not follow the procedure for appointment of teachers under Rule 4 of the Rules and that the District Education Officer had disapproved of the appointment of the petitioner as Headmaster. The Court further held that the ORDER :in Annexure 8 was legally passed.
Issues: 1. Whether the 1972 Rules survived the repeal of the 1960 Act? 2. Whether the Managing Committee had the power to appoint a Headmaster after the Ordinance came into force? 3. Whether the Managing Committee followed the procedure for appointment of teachers under Rule 4 of the Rules? 4. Whether the District Education Officer disapproved of the appointment of the petitioner as Headmaster? 5. Whether the ORDER :in Annexure 8 was legally passed?
Ratio Decidendi: 1. The 1972 Rules were repealed along with the 1960 Act and were not saved under Section 27 of the Bihar General Clauses Act because the Ordinance did not delegate rule-making powers to the State of Bihar or any other authority. 2. The Managing Committee had no power to appoint a Headmaster after the Ordinance came into force because Section 38(a) of the Ordinance prohibited any kind of appointment excepting those in accordance with the provisions of the Ordinance, and the term 'appointment' included promotion. 3. The Managing Committee did not follow the procedure for appointment of teachers under Rule 4 of the Rules because it did not send the resolution appointing the petitioner to the District Education Officer for approval. 4. The District Education Officer disapproved of the appointment of the petitioner as Headmaster when he learnt about it, as evidenced by Annexure 1. 5. The ORDER :in Annexure 8 was legally passed because the Board had the authority to appoint the Headmaster in accordance with the procedure laid down in Chapter VI of the Ordinance.
Final Decision: The Court dismissed the writ application with costs payable by the petitioner to the Board.
Lalit Mohan Sharma, J.
The petitioner no. 1, a teacher in the High School, Madhepura, has prayed for quashing of the ORDER :as contained in Annexure 8 to the writ application passed by the Bihar Secondary Education Board, Respondent no. 3, on 4.11.1975. The petitioner no. 2, who was the Secretary of the Managing Committee of the school, has joined him in the case.
2. Admittedly, late Shri Lala Surendra Prasad was the Headmaster of the school who died on the 2nd October, 1974. According to the case of the petitioner, the Managing Committee of the school by its resolution dated 17.10.1974, as contained in Annexure 1 to the writ application, substantively promoted him to the post of the Headmaster. The petitioner no. 2, the Secretary, according to the further case in the writ application, wrote to the respondents for approval of the appointment as resolved in Annexure 1. The respondent no. 2, the Secretary of the Education Board, directed the petitioner no. 2 to maintain status quo, but when classification was sought for of the ORDER :, the respondent no. 2 informed, by the letter as contained in Annexure 2 to the writ application dated 12.11.1974 that the petitioner no. 1 would continue as the Headmaster pending the final appointment in that post. The petitioner no. 1 accordingly acted as the Headmaster from 17.10.1974 until the impugned ORDER :in Annexure 8 was passed. In the writ application, several other facts are mentioned, but Mr. Balabhadra Prasad Singh, learned counsel for the petitioners, while making his argument, stated that those facts are not material for the purposes of his argument and he was, therefore, not placing them. By his ORDER :contained in Annexure 8, the Board has directed that pending final appointment of the Headmaster of the School, Respondent no. 4 would be the acting Headmaster and the ORDER :as contained in Annexure 2 passed in favour of the petitioner no. 1 was cancelled.
3. Before proceeding further, it would be useful to mention the relevant statutory provisions which have been referred to and relied upon by the learned advocates for the parties. In 1960 the Bihar Legislature passed Bihar High Schools (Control of Administration) Act, 1960 to control and regulate the administration of private High School in the State. The Act was a short one having only 10 sections and Section 3 provided for establishment of a Board of Secondary Education. Section 5 said that there would be a Managing Committee for every school. Section 8 bestowed, on the State Government, the power for making rules for carrying out the purposes of the Act. In 1972, the Government framed the Bihar High Schools (Conditions of Service) Rules, 1972 (hereinafter referred to as the Rules). The power to appoint teachers including the Headmaster was vested in the Managing Committee of the school under Rule 4. On the 21st May, 1974, the 1960 Act was replaced by an Ordinance being Ordinance no. 112 of 1974 and since then a number of ordinances have been passed from time to time. On the 22nd July, 1974, Ordinance 153 of 1974 was passed and remained effective till 14th January, 1975 when it was replaced by another ordinance. The interpretation of some of the provisions of ordinance no. 153 of 1974 has been the subject of a serious controversy in this case. On the 22nd April, 1976, Ordinance no. 124 of 1976 came into force and the parties have referred to some of the sections of the Ordinance also. It may, however, be stated here that except some small changes, the contents of the ordinances have remained similar.
4. The original text of these ordinances as well as of 1972 Rules has been in Hindi, but both sides have referred to the English translation of the relevant provisions, some of which have appeared in the official Bihar Gazette.
5. The provisions relating to services in schools were included in Chapter VI containing Sections 37 to 49 of ordinance no. 153 of 1974. Section 37 stated that the Board should regulate the recruitment
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