- (1.) The present writ petition has been preferred against the order, dated 20th August, 2001 (Annexure2 to the memo of the present petition), passed by the Secretary, Human Resources Development Department, State of Jharkhand, Ranchi whereby, it has been directed by the respondents that the services of the present petitioners are to be terminated by the Management School because they are appointed illegally as they were untrained, and secondly, for the reason that when they were appointed/reappointed (upon getting the B.Ed qualification) their names, were not included in the panel prepared by the District Education Establishment Committee. For these two reasons, a direction was given to the Management School to terminate the services of the present petitioners and the petitioners are challenging this order, passed by the respondent State authorities.
(2.) THE issue raised in this writ petition to be adjudicated are as under: Whether the respondent State authorities has power, jurisdiction and authority, to give direction, by subordinate Legislation (i.e. by a Circular, dated 31st December, 1982, enacted under Section 8 of the Bihar Non Government Elementary School (taking over of Control) Act, 1976 and that too making it effective from a retrospective date i.e. from 1st January, 1971) to the Management, (which is alleged to be a minority school), to terminate the services of teachers, on the ground that when these Teachers were appointed in the year 19781979, they were not trained Teachers as well as they were appointed against unsanctioned post as well as for the reason that their names were not reflected in the list of candidates prepared by the District Education Establishment Committee. Factual Matrix: Petitioner No. 1 was appointed as a teacher on 11th February, 1979 in Kabiria Urdu Middle School, Zakir Nagar, Mango, Jamshedpur which was granted recognition by the Government in the year 196869, which was extended from time to time and thereafter, it was granted permanent recognition in the year 1972. When the petitioner no. 1 was appointed in the year 1979, he was a graduate in Arts faculty and he cleared or passed Teachers' Training Examination (B.Ed.) in the year 1982. The services of the petitioner no. 1 was approved by the Government in the year 1983 in Matriculation Trained Scale as he has acquired B.Ed. Degree in the year 1982 and in the year 1989 services of the petitioner no. 1 was approved in I.A. Trained scale. Petitioner no. 2 was appointed as a teacher in the aforesaid school on March, 1979 and he cleared his teachers' training examination (B.Ed. ) In the year 1988 and the services of petitioner no. 2 was approved with effect from 1st April, 1989. Petitioner no. 3 was appointed as a teacher with effect from 8TH November, 1979 in the aforesaid school and he has cleared his Teachers Training examination (B.Ed.) in the year 1987 and he was approved in the services in the Intermediate Arts Trained Scale with effect from 1st April, 1989. Petitioner no. 4 was appointed on 1st August, 1990 and from the very beginning petitioner no. 4 is a Graduate and has cleared her Teachers' Training Examination (B.Ed.) and therefore, her services were also approved by the competent authority with effect from the very same date, i.e. from the date of her appointment, i.e. with effect from 1st August, 1990. All these four teachers have served in the aforesaid school honestly, diligently, sincerely and to the satisfaction of the respondents and neither any notice have been given to them for their work being unsatisfactory nor regarding any other misconduct. Petitioners were also paid salary by the Government up to December, 1996 because the school in which they were serving was a minority aided school. Thereafter, the government stopped paying the salary and hence a writ petition, being C.W.J.C. No. 551 of 2001 was preferred by the present petitioners before this Court for getting salary from January 1997 onwards. This writ petition was decided by this Court, vide order dated 8th February, 2001, in which the Secretary, Education Department, Govt. of Jharkhand was directed to decide the claim of the petitioners in accordance with law and to pass a speaking order. The said order is at annexure 1 to the memo of the petition. In pursuance of the aforesaid direction, the order, dated 20th August, 2001, was passed by the Secretary, Education Department, Government of Jharkhand, whereby a direction was given by the Government to the Management of the Kabiria Urdu Middle School to terminate the services of the petitioners. Thus, the petitioners, who preferred the petition to get the salary, got a direction from respondent no. 2 for termination of their services and hence, the order, dated th August, 2001, is under challenge by way of this writ petition.
(3.) ARGUMENTS canvassed on behalf of the petitioners: As the petitioners were working as teachers since 1978 -1979 in the minority school, the direction given by the respondents in the impugned order is illegal and violative of Article 30 of the Constitution of India. The circular, dated 31st December, 1982, bearing instruction no. 2501, relied upon while passing the impugned order, is absolutely illegal and could not have been issued under section 8 of the Bihar NonGovt. Elementary School (Taking over of Control) Act, 1976 (for the sake brevity "The Act, 1976 ). Assuming without admitting that there is a power with the State Government under section 8 of The Act, 1976, it can not be applied with retrospective effect because the petitioners were appointed in the year 197879 and Petitioner no. 4 was appointed and approved in the year 1990, she being already a graduate and B.Ed. Degree holder. Section 8 of the Act, 1976 is empowering the government to remove the difficulties. Thus, it is a Henry VIII clause and therefore, the removal of difficulties clause can not be utilized as a substitute for rule making power as has been held in the decision reported in AIR, 1988 Patna, 9 (FB). In the impugned order a departmental instruction dated 31st December, 1982 has been relied upon and looking to this circular it appears that the same has been enacted under section 8 of the Act, 1976 and therefore, under Section 8 of the Act, 1976, the State of Government has no power, jurisdiction and authority to issue the circular dated 31st December, 1982 bearing Instruction No. 2501. Similar is the fate of another circular in order dated 4th March, 1993 bearing Govt. resolution No. 709, which is relied upon by the Government. Henry VIII clause and the rule making power are quite different and one cannot substitute the other. Counsel for the petitioners has also pointed out that the Govt. has already approved the Matric Untrained Scale as well as Intermediate Untrained Scale etc. meaning thereby that if any teacher is appointed without having any B.Ed. Degree or diploma in teacher's training, then he or she will be entitled to untrained scale and no sooner a teacher acquires qualification by clearing Teachers' Training Examination, he or she will be entitled to trained scale, which may be a matric trained scale or B.Sc./B.A. Trained Scale. Thus, it implies that initially there can be a legal and valid appointment of a teacher even though he was not a trained teacher. In the facts of the present case, it is submitted by the counsel for the petitioners that all the petitioners have acquired B.Ed. Degree within a couple of years and they are not seeking even any salary etc. for their initial period in service in this writ petition. The only reason for passing the impugned order appears to be that when the petitioners have been appointed in the year 197879, they were untrained. This reason is not a valid reason in the eye of law. This alleged circular of 31st December, 1982 can not be given retrospective effect because petitioners were already appointed in the year 197879. It is further submitted by the counsel for the petitioners that looking to the impugned order, the second reason given is that only out of the list of candidates, the Govt. has prepared, teachers could have been appointed. This is, primafacie dehors the law and the provisions of the Act, 1976. This arbitrariness is reduced in writing by way of circular dated 4th March, 1993 bearing Circular No. 709. This circular is equally bad as the circular dated 31st December, 1982 because this second circular is also issued under section 8 of the Act 1976 as Section 8 vests power in the Government to remove the difficulties, like the Henry VIII clause. Under this clause no detailed rule can be framed by the government and that too with retrospective effect. It is further submitted by the counsel for the petitioners that basically the circular dated 4th March, 1993 is a relaxation in the process of selection of teachers, which was given in the circular dated 31st December, 1982. Earlier circular was also issued under the Henry VIII clause. Thus, power to remove the difficulties has been used as power to make the rules. In fact, section 7 of the Act, 1976 empowers the Govt. to make the rules and after enacting the rules, it shall be laid before the House of the State Legislature as soon as possible, while it is in session, for a period of 14 days and in case it is before expiry of the session, this type of rules should be laid before the floor of the house immediately when the session of the House is going on. To avoid this type of process, State Government has adopted a short cut route and has drafted out a circular dated st December, 1982 bearing instruction no. 2501 (which is at Annexure 10 to the memo of this petition). This is impermissible in the eye of law. Counsel for the petitioners submitted that same type of circulars were issued in past also. They are four in number, invoking the powers vested in the government under section 8 of the Act, 1976. All the earlier four circulars were challenged before the Hon'ble Patna High Court. The matter was referred to a Full Bench and ultimately, all these four circulars, which were issued in exercise of power under section 8 of the Act, 1976 (which is like Henry VIII clause) were quashed and set aside in the case of Krishnadeo Misra Vs State of Bihar and others [AIR 1988 Patna 9 (F.B.)]. Counsel for the petitioners has heavily relied upon this decision and is also relying upon the following decisions. I) 1988 PLJR 646 ii) 1992 (2) PLJR 512 iii) (1998) 6 SCC 674 and iv) (2007) 1 SCC 386, especially paragraph no. 19 thereof, in which general principals relating to establishment and administration of a Educational institutions by the minorities have been summarized to the effect that minority school management has a right to constitute its own governing body. Likewise they have their own right to chose the teaching staff, teachers, lecturers/principals as well as their non teaching staff and such other rights, i.e. to admit the students etc. Counsel for the petitioners submitted that the petitioners worked in aided minority educational institute and therefore, there is no need to select a teacher from the socalled panel of teachers prepared by the government. Such type of restriction is violative of Article 30 (1) of the Constitution of India. Thus, it is submitted by the counsel for the petitioners that the petitioners, who were working since 197879, were paid salary also and after being approved, they were paid salary regularly by the Govt. They were also given Matric Trained scale as well as intermediate Arts Trained Scale. The petitioners have been paid even the benefits of 5th Pay revision with effect from 13th January, 1996 (as per annexure 9 to the memo of the petition) and from January 1997 the respondents stopped paying salary and therefore, C.W.J.C. No. 511 of 2001 was instituted, in which a direction was given to consider the case of the petitioners in accordance with law and thereafter, the impugned order has been passed for termination of the services of the petitioners. This impugned order is based upon illegal circulars and even if this circular, dated 31st December, 1982 is legal, the same is not applicable to the petitioners because the petitioners were appointed much earlier in point of time and just for the purposes of terminating the services of the petitioners, an executive instruction can not be given retrospective effect unless the Act permits. Looking to the provisions of the Act 1976, it appears that the power under section 8 of the Act, which empowers the Government only to remove the difficulty, has been exercised for issuing circular dated 31st December, 1982. From that point of view also the circular is not binding upon the petitioners. Counsel for the petitioners also relied upon a decision reported in 1988 PLJR 646 paragraph 52 onwards and it has been held in paragraph 62 thereof that when a person is validly appointed, he is legally entitled to receive the salary. Such a right to receive salary tantamount to right to hold property and this is falling within the Article 300A of the Constitution of India and therefore executive instruction given by way of the circular dated 31st December, 1982, assuming without admitting that it is issued under article 162 of the Constitution of India (in fact it is issued under section 8 of the Act, 1976, which is absolute use of powers by the State Government), is always subject to Article 300A of the Constitution of India and therefore, the accrued or vested right in the petitioners under Article 300A can not be taken away with retrospective effect because as per the circular, those teachers, who were appointed on 1st January, 1971, who were untrained, have no right to continue in their services (as per paragraph 10 of the impugned order at annexure 2 to the memo of the petition). It is submitted by the counsel for the petitioners that this logic is itself illegal because executive or subordinate legislation can not be given retrospective effect, except where the specific powers should be conferred under the statute and the provisions of the Act, 1976. No such powers have been conferred upon the respondents to issue executive instructions and that too under section 8 of the Act, 1976, which is like Henry VIII clause with retrospective effect and hence also the impugned order at annexure 2 deserves to be quashed and set aside. It is further submitted by the counsel for the petitioners that as stay has been granted by this Court, petitioners are working as teachers, but, the respondents are not even paying the salary. ;