RAMESH MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) BY this writ application, the petitioner has challenged the order of the Chairman, Bihar Sanskrit Shiksha Board dated 27.07.1993 (Annexure -19). Effectively, that order was intended to end a controversy arising between the petitioner and respondent no.7. Parties have been noticed and they have appeared. The facts are not really complicated though it has spread over for a long period. On behalf of respondent no.7, a preliminary objection is raised that the impugned order Annexure -19, being the order of the Chairman, Bihar Sanskrit Shiksha Board, could have been impugned in an appeal in terms of the Bihar Sanskrit Shiksha Board Act, 1981 and, no appeal having been preferred against this order, which is an alternative remedy, this writ petition should be dismissed. In my view, it is too late in the day to urge the same. This writ petition was filed in the year 1993 and, was admitted for final hearing on 06.10.1993. Relegating the petitioner to alternative remedy after 18 years, would only be unjust, unfair and undesirable. Had this objection being taken in 1993 or soon thereafter, it could have been entertained but not after 18 years. It is well settled that rule of alternative remedy is a matter of discretion and not a matter of jurisdiction of this Court. I, therefore, reject this preliminary objection. In this connection, I may refer a judgment of the Apex Court in the case of L. Hirday Narain Versus Income Tax Officer, Bareilly since reported in AIR 1971 Supreme Court 33. The facts of this case are not complicated and, in my view, the facts itself would decide the case, if they are seen in proper perspective.

(2.) THERE is a privately run Sanskrit School, namely, Shri Chandi Sanskrit Uchcha Vidyalaya, Harpur (Bagaha) in the district of West Champaran, duly recognized by Bihar Sanskrit Shiksha Board. The School had seven sanctioned posts of teachers. Five posts were duly filled up, the sixth and seventh posts were required to be filled up. The sixth post was for 'Acharya' and the seventh post was for Graduate. Accordingly, in May, 1983 a newspaper advertisement for the two posts was issued by the Secretary of the Managing Committee of the School. Pursuant to the aforesaid, respondent no.6, Shri Anirudha Nath Tiwary and the petitioner applied. Shri Anirudha Nath Tiwary had applied for the 'Acharya' post and petitioner had applied for Graduate post. Thus, they had applied respectively for sanctioned post nos.6 and 7. Selection was done and respondent no.6 and the petitioner were selected for the respective posts. The proceeding of the Managing Committee dated 30.05.1983 is annexed as Annexure -2 and, pursuant thereto, letters of appointment was issued to the parties in respect of which petitioner's appointment letter is Anneuxre -3. This appointment was subject to approval by the Bihar Sanskrit Shiksha Board (hereinafter referred to as the Board). Accordingly, by Anneuxre -4 dated 27.10.1983, the School sent recommendation for approval of the appointment of the petitioner and respondent no.6 to the Board.

(3.) IT is not in dispute that the Sanskrit Shiksha Board granted approval so far as respondent no.6 is concerned. It is also not in dispute that appointment of petitioner was not approved though there is no communication or order of disapproval as well. What we have now is a peculiar letter/order from the Board which is Annexure -A/1 to the counter affidavit of respondent no.7. This is an office order dated 19th January, 1984. By this letter sent from the Board to the School concerned, it is noted that respondent no.7, who was working in another School, has been transferred to the School in question and the Managing Committee of the School has no objection to the said transfer. At this stage itself, I may notice that this is de hors of statutory provision, statutory power and authority of the Board. Both the Schools are private schools. There is neither authority nor any provision of any transfer and, obviously, this so called transfer was something that was being imposed upon a School without authority by the Board.