OM PRAKASH CHOUBEY Vs. THE DIRECTOR (SECONDARY EDUCATION)-CUM-ADDITIONAL SECRETARY, GOVERNMENT OF BIHAR AND ANOTHER

JUDGEMENT

(1.) These two applications involve a common question whether services of untrained teachers appointed by the sponsors of a High School should be approved by the Secondary Education Board and accordingly taken over by the State Government or not. C.W.J.C. No. 3634 of 1983 relates to a teacher in a High School recognised by the Secondary Education Board on 15.1.1979. C.W.J.C. No. 2426 of 1983 relates to a teacher of a High School established on 1.1.1979 and before it could be affiliated/recognised by the Board, Bihar Secondary School (Taking Over of Management and Control) Ordinance, succeeded by the Bihar Secondary School (Taking Over of Management and Control) Act, 1981 came in force. One is required to travel through a jungle of the executive instructions, circulars and orders and the successive Acts, Ordinances, Rules and Regulations to know the methods of recruitment and service conditions of the teachers of the High Schools which were called non -government High Schools until taken, over by the State Government, by the Ordinance published on 11.8.1980. Uncertainties about the services and service conditions of the teachers of such schools still continue. Before I actually deal with the facts of the cases of the two teachers, which are heard by us, I propose to venture into the laws that appear to be relevant. There were no statutory provisions to control and regulate the administration of non government High/Higher Secondary Schools in the State of Bihar until the Bihar High Schools (Control and Regulations) Act, 1960. Although there has been a Board of Secondary Education extending recognition to the non -government High Schools, there has been circulars and orders prescribing minimum standard of teaching, conditions of service of the teachers and other category of employees etc. first statutory recognition to the Board, its powers and functions and the rules concerning the service conditions of the teachers came under various provisions of this Act. Sec. 8 of this Act sail that the State Government could, after previous publication and subject to the provisions of Articles 29, 30 and 337 of. the Constitution of India make rules not inconsistent with the Act for carrying out the purposes of the Act, sub -section (2) thereof provided that until the State Government made rules the provisions contained in the Bihar Education Code, 7th Edition, as amended from time to time, and all resolutions and orders of the State Government or of the Director of the Public Instruction, Bihar, a collection of which orders was published in the extraordinary issue of the Bihar Gazette of the 23rd March, 1959 and which were enforced on the date of commencement of the Act, would, in so far as they were not inconsistent with the provisions of the Act and the provisions of the Constitution of India relating to Schools established and administered by Anglo Indians and minorities based on religion and language, be deemed to be the rules made under the Act. The State Government, however, exercised its statutory power to frame service condition rules of the teachers of the schools only in October, 1972 and until its publication in the Bihar Gazette on the 25th of October, 1972, the rules contained in the Bihar Education Code, 7th Edition and published in the Extraordinary issue of the Bihar Gazette of the 23rd March, 1959 held the field. The Act, however, was repealed by an ordinance published on 21.5.1974 which introduced substantial changes in the powers and functions of the Board, created a service commission for the teachers and made substantial changes in the mode and procedure of recruitment. After a series of successive Ordinance came the Bihar Secondary Education Board Act, 1976. Before, however, matter could establish and take shape under its provisions its repeal also came by the Bihar Non -Government High Schools Taking over of Management and Control) Ordinance, 1980. This Ordinance has been succeeded by the Bihar Secondary Education Board (Taking Over the Management and Control)Act, 1981.

(2.) A Government order bearing No. 5172 dated 7.9.1955 Which had been published in the Bihar Gazette dated 23.3.59 contained the service condition rules including the rules regarding recruitment of the teachers. Rule 2 in the said notification provided that only graduates who were trained and who possessed 5 years, teaching experience, or untrained graduates of approved merit with 10 years teaching experience could be considered for appointments as Headmaster and all appointments to the teaching staff would be on probation for a year. This rule also contained:

(3.) The 1960 Act, however, was repealed by the Bihar Secondary Education Board Ordinance, 1974, published on 21.5.74 and successive Ordinances and finally by the Bihar Secondary Education Board Act, 1976. Chapter VI of the Ordinances and the 1976 Act made provisions for the service conditions of the teachers and the non -teaching staff of the Secondary Schools. It contemplated establishment of a teacher's service commission and stated that appointments would be made in accordance with the provisions contained therein but nowhere provided for the minimum qualifications of the teachers. Chapter IX of the Ordinances and the Act contained provisions empowering the State Government to issue directions, and the Board to frame rules and regulations. The rules framed under Sec. 8(1) of the 1960 Act, to the extent they were not inconsistent with the provisions of the Ordinance and the Act, continued to hold the field. I shall deal with this aspect of the law more while discussing the cases in hand, but it appears obvious to me that the recruitments made until the 1972 rules came in force, were required to confirm to the provisions contained in the notification dated 7.9.1955 and after the enforcement of the 1972 rules in accordance with the provisions contained therein. Untrained teachers including persons having lesser qualifications than graduates could be appointed in the High Schools/Secondary Schools/Higher Secondary Schools so long the rules contained in the notification dated 7.9.1955 were in force. Since the 1972 rules prescribed a minimum qualification as that of a trained graduate after 25.10.1972, that is to say the date when the 1972 rules came in force, only trained graduates could be appointed as Assistant teachers except for teaching subjects like classics, music craft etc.