AHMAD NOOR Vs. STATE OF BIHAR

JUDGEMENT

(1.) 1. The writ petition has been filed for quashing the order dated 13 -3 -1992 passed by the Spl. Director, Secondary Education in Appeal No. 27/91, Annexure -1, whereby the order dated 4 -7 -1991 passed by the Chairman of Bihar State Madarsa Education Board, approving appointment of petitioner, has been set aside.

(2.) The Madarsa Islamia Rabbul Buksh Abadpi in is a minority institution. The petitioner and respondent No. 5 were appointed as Asst. Teachers in the aforesaid school by the Managing Committee on 2 -1 -1978 and 1 -11 -1981 respectively against unsanctioned post. Initially, the appointment against unsanctioned post was to be absorbed against sanctioned post but the Board by its resolution dated 16 -10 -1985 resolved that no such absorption would be allowed in future rather the post falling vacant would be advertised and preference would be given to the teachers appointed and working against unsanctioned post. The Madarsa Education Board vide resolution dated 29 -8 -1983 resolved that upper age -limit for appointment of the teachers would be 35 years. However, there may be relaxation of age to the extent of 3 years. Subsequently, the Madarsa Education Board took resolution on 8 -3 -1984 that relaxation of age would be applicable to only in case where interview was held after 29 -8 -1983. One Sri Ashish Akhter teacher working in the school against sanctioned post of Matric trained retired on 31 -10 -1988 and as such, the said post fell vacant. The Managing Committee of the Madarsa took a decision to advertise the post and, accordingly, advertisement was published on 8 -3 -1991 inviting application for appointment on the post of matric trained teacher in which it was stated that preference would be given to the experienced candidate. The petitioner and other applied. The selection committee recommended the name of the petitioner at serial No. 1 in order of merit and Respondent No. 5 at serial No. 3. The Managing Committee decided to appoint the petitioner against sanctioned post and communicated its decision to Madarsa Education Board for its approval. Respondent No. 5 raised objection that petitioner was more than 35 years on the date of publication of advertisement and petitioner is not Hindi knowing teacher but the Chairman of the Board approved the appointment relaxing the age. Respondent No. 5 preferred appeal before the Special Director, Secondary Education Bihar, Patna, respondent No. 2. Respondent No. 2 after hearing the parties set aside the order of approval of appointment of the petitioner on the ground that the date of birth of the petitioner was 9 -1 -1995 and on the date of advertisement i.e., on 8 -3 -1991 he was more than 35 years of age vide order dated 13 -3 -1992, Annexure -1 which has been impugned in this writ application.

(3.) A counter -affidavit and a supplementary counter -affidavit have been filed on behalf of respondent No. 5 stating therein that he and the petitioner were appointed by the Managing Committee with effect from 2 -1 -1978. The Managing Committee of the school had filed a writ petition being C.W.J.C., No. 5967/91 for release of grant wherein it has been admitted that respondent was appointed on 2 -1 -19 78 against unsanctioned post. At the time of appointment, he was LA. and was appointed on monthly salary of Rs. 145/ -. The writ petitioner was matriculate and he was appointed on monthly salary of Rs. 150/ -. He passed B.A. with Hindi as principal subject in the year 1980. The writ petitioner passed B.A. in the year 1988 with Bengali as principal subject. On retirement of Ashish Akhter on 31 -10 -1988 the said post fell vacant. The Managing Committee took a resolution on 25 -12 -1988 to fill up the post by appointing Hindi knowing teacher. Pursuant to the said resolution, advertisement was published on 8 -3 -1991. The petitioner and Ors. applied pursuant to the advertisement. The selection committee prepared a panel in which the petitioner was at serial No. 1 and this respondent was at serial No. 3. He raised objection before the Chairman that petitioner was more than 35 years on the date of advertisement as his date of birth was 9 -1 -1955. He passed B.A. examination in 1988 with Bengali as principal subject whereas this respondent passed B.A. examination in 1980 with Hindi as Principal subject. Four members of the Managing Committee also raised objection in writing against the panel prepared before the Chairman, Madarsa Education Board but the Chairman approved the appointment of the writ petitioner condoning the upper age -limit without considering the objection and assigning reason against which appeal was preferred which was allowed vide Annexure -1. The claim of the writ petitioner that this respondent was appointed on 1 -11 -1981 is false and fabricated.