BADAL KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In a group of these writ applications, as identical question of law is involved, these writ applications are being disposed of by this common order.

(2.) Learned counsel for the petitioner submits that the impugned order suffers from illegality on the ground that when the petitioner has filed the show-cause, it was the duty of the authority to consider the case and pass a reasoned order which has not been done nor proper reason has been assigned for withdrawing the approval granted to the petitioner. As the said school is a minority school having been protected by Article 29 and 30 of the Constitution of India, the State has the jurisdiction to frame rules for regulating measures with avowed object of maintaining standard of educational level of the institution so that student of minority can march along with rest of the students of country but, cannot interfere in the management of the minority institution. It has been submitted that the letter of the Government dated 4.3.1993 is completely in the nature of interference with the working of the Board of Management in the administration. It has further been stated that the appointment of teacher is part of administrative function which is immune from the interference of State Government. He has further stated that so far the appointment of untrained teacher is concerned, in this connection, it has been mentioned that it is in consonance with the circular no. 3829 dated 26.7.1974 and after obtaining the training, the proposal was sent for the approval of the service of the petitioner. Though the petitioner was appointed as an untrained teacher and it was made clear at the time of appointment, the payment would be made after receipt of the grant from the Government and so much so that the application for approval was sent only when the petitioner acquired degree of training. It has been argued that the minority institution cannot be compelled to make provision of reservation to the person of socially backward, scheduled caste and scheduled tribes citizen of India. The minority institution, religious or linguistic have been given protection as provided under Article 29 and 30 of the Constitution of India. In such view of the matter, the minority institution cannot be compelled to follow the reservation policy of the State, inasmuch as, it has further been argued that the management of the said school cannot be compelled to issue the presence of government representative in the matter of selection of the teacher as it would be interference with the working of the management of the school. It has further been argued that once an approval was granted, the successor has no jurisdiction to review and recall the earlier decision of granting approval. It is not so the appointment has been made without due process, but facts remains that as per the Bye-Law of the school, the appointment has been made by making a local advertisement and also pasting the notices at appropriate conspicuous places including in the notice board of the school. The procedure has been followed in terms of the bye-laws of the school is sufficient compliance of the proper selection. He has placed reliance of the following judgments in the case of The Ahmedabad St. Xaviers College Society & Anr. Etc. Vs. State of Gujarat & Anr., 1974 AIR(SC) 1389 , Anjali Jain & Anr. Vs. The State of Bihar & Ors., 2011 3 PLJR 702 , T.M.A. Pai Foundation & Ors. Vs. State of Karnataka & Ors., 2003 1 PLJR 1 , Sidhrajbhai Sabbai & Ors. Vs. State of Gujarat & Anr, 1963 AIR(SC) 540 in such view of the impugned order is completely bad in law, it suffers from illegality on account of interfering with the working of the management whereas in terms of the repeated judgments of the Hon'ble Supreme Court, they do have a power for regulation but has no jurisdiction of interfering with the working of the management committee of the school. It has further been submitted that though at the initial stage, the petitioner was untrained teacher but when the Managing Committee sought approval, at that time, he had received training and whatever be the deficiency were there have been removed. He has further submitted that on many occasions, in general teacher, the persons were appointed as untrained teacher and later on they were sent for training and their services have still not been terminated. The requisite qualification is not to be seen what was there at the time of advertisement rather at the time of approval of the services of the petitioner by the State Government. Placed reliance on the judgment in the case of The State of Bihar & Ors. Vs. Ashok Kumar Sinha & Ors.,2008 4 PLJR 298 . It has further been stated that if the order is being passed on different grounds and one of the ground is found to be unsustainable, the entire order will go. In support of his submission, he has placed reliance on the judgment in the case of The State of Maharashtra Vs. Babulal Kriparam Takkamore & Ors., 1967 AIR(SC) 1353 Paragraph 15. It has further been submitted that the order shows that there was a ban in the appointment, cannot be extended to the minority school as the ban was applicable only to the government school otherwise it would amount to interference with the worker of the minority institution.

(3.) Learned counsel for the State has pointed out that the petitioner has never filed any show-cause rather he has placed reliance on the show-cause filed by the Secretary of the school and he cannot blame and claim illegality on the non-consideration of the showcause.