Mihir Kumar Jha, J.@mdashHeard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:--
"1. That this is an application for quashing of an order as contained in Memo No. 244(P) Patna dated 11.5.2010 passed and issued by the respondent No. 3 (The Director, Secondary Education) by which recognition of service of the petitioner on the post of Assistant Teacher in Project Indu Balika Uchcha Vidyalaya, Sasaula Sabha, Police Station-Mejarganj, District-Sitamarhi (hereinafter referred to as ''the school") has been refused on the ground that the post of Physical Teacher is not sanctioned which is totally based on non est and frivolous ground as the petitioner has been appointed in the school as subject teacher in History, which is within sanctioned strength, by issuing an appropriate writ and further for issuance of an appropriate writ/writs, direction/directions directing the respondents, particularly the respondent No. 3 to recognize the service of the petitioner on the post of as Assistant Teacher in History Subject in the school in view of the Full Bench judgment, rendered in Project Uchcha Vidyalaya Shikshak Sangh and analogous cases on 7.12.1999, reported in 2000(1) PLJR 287 and the judgment of the Apex Court pronounced on 3.1.2006 in Civil Appeal Nos. 6626-75 of 2001 and 6676-81/2001, Which affirmed the judgment of the Full Bench as referred above with certain directions and is reported in 2006(11) SCC 545 and further in view of the recommendation made by the Three Man Committee constituted in the light of the aforesaid judgment of the Apex Court as referred above and further in view of the several Govt. orders/circulars/Executive instructions issued from time to time by the State Govt. and further to pay him salary w.e. from 1.1.1989 with all consequential benefits in term of the Govt. letter No. 142 dated 4.2.1989."
2. Learned counsel for the petitioner, while assailing the impugned order passed by the Director, Secondary Education dated 11.5.2010, has submitted that the reason given for rejecting the representation of the petitioner for absorption of the services in the Project School of being non-availability of the post in the prescribed staffing pattern (Manak Mandal) is factually incorrect and legally impermissible and as such this Court may quash the aforementioned order dated 11.5.2010 and grant consequential relief for absorption of the services of the petitioner.
3. Learned counsel for the State, on the other hand, while supporting the impugned order, has submitted that the case of the petitioner was earlier considered for absorption in the Project School and was rejected by an order dated 22.7.2008 which in fact had only been reaffirmed by the impugned order on a reconsideration of the representation filed by the petitioner.
4. In the considered opinion of this Court, this writ application filed after three to five years of cause of action is fit to be dismissed on the ground of delay and laches inasmuch as there is no explanation for such a delay.
5. This Court, however, has also gone into the merits of the matter, keeping in view of the claim of absorption of the service of the petitioner in the Project School in the light of the reason given in the impugned order. As noted above, the solitary reason for rejecting the claim of the petitioner for his being absorbed in Project School is non-availability of sanctioned post of physical trained teacher in the prescribed staffing pattern of Project School.
6. From perusal of the materials on record, it would transpire that the petitioner claims that he was appointed in Indu Girls High School, Sasaula Sabha, Sitamarhi (hereinafter referred to as ''the school") in the year 1981 under the decision of the Managing Committee dated 26.12.1981 and he had started working in the aforementioned school since 2.1.1982. According to the petitioner, the school in question was selected for becoming a Project School in the year 1985 and the petitioner, in view of his appointment as a teacher in the aforementioned school, had continued to work, but even then the State Government, by an order dated 22.7.2008, had rejected the claim of the petitioner for absorption in the Project School on the ground that there was no sanctioned post of physical trained teacher under the staffing pattern for the Project School. According to the petitioner, as against the aforementioned order dated 22.7.2008, he had filed a representation which has been rejected by the impugned order dated 11.5.2010.
7. As would be evident from the order dated 22.7.2008, as contained in Annexure-7, the solitary reason for rejecting the case of the petitioner of his absorption in the Project School was nonavailability of the post of the Physical Trained Teacher within the staffing pattern. The staffing pattern for school like that of the petitioner''s school, which was taken over in the second phase as a Project School, had only 09 sanctioned posts of teacher and to that extent it may be found even from perusal of prescribed norms as contained in Annexure-6 that the Government had sanctioned only 03 posts of Humanities, 03 posts of Science and 03 posts of language (English, Hindi & Sanskrit) in terms of the staffing pattern of the nationalized high schools as contained in Government letter No. 705 dated 12.10.1982.
8. Admittedly, in the school of the petitioner, as per the list of teachers, Smt. Chhabila Sinha was the teacher of Social Studies, Smt. Kumari Saroj Sinha was the teacher of Home Science, Sri Harishankar Kumar-Zoology, Sri Shiv Narayan Choudhary-Economics & Geography, Sri Gopikant Jha-Sanskrit, Sri Kumar Ram Ekbal Singh-Mathematics and Physics, Sri Arbind Kumar Singh-English and Sri Ramdeo Prasad Singh was the subject teacher of Hindi. In the list of teachers though the petitioner has tried to make out a case of being a teacher of History and Civics and thus a 4th teacher in the Humanities against only three sanctioned posts by the State Government for Project Schools but then what would really go against him is his qualification because the petitioner was a simple graduate even till 1992 as per the list of teachers produced by him vide Annexure-5. Therefore, if the petitioner had subsequently come out with a claim that he had passed training examination in physical education, that could have made him entitled for absorption had there been any post of physical trained teacher.
9. As noted above, the Government had made however it very clear that the appointment on the post of teacher in the Project School would be only from amongst the trained candidates against the sanctioned post of the staffing pattern. To that extent, letter No. 705 dated 12.10.1982 is significant wherein both the staffing pattern of sanctioned post as also the qualification for the post of teacher was clearly laid down and reads as follows:--
10. From the aforementioned Government circular dated 12.10.1982, it would firstly become very clear that there was no sanctioned post of physical trained teacher and if the petitioner wanted to claim of absorption the post of History; teacher i.e. one of the three sanctioned post of teachers of Humanities, he was not having the prescribed qualification having undergone and completed the teachers training course by way of Bachelor of Education (B.Ed.) The petitioner is shown having qualification of physical training and in fact even till today not a trained teacher having qualification of B.Ed. Thus, when there was never a scope of appointment of a teacher with physical training in a High School sought to be made Project School, this Court will have no difficulty in holding that the petitioner''s services could not have been absorbed inasmuch as there was a clear emphasis in the Government decision that for appointment of trained teacher against the prescribed number of sanctioned post. This would be also evident from the following passage of the Government letter No. 142 dated 4.2.1989, which again for the sake of clarity and convenience is quoted hereinbelow.-
11. This Court has carefully gone into the submission of the learned counsel for the parties in the light of the afore-mentioned admitted facts as also the law laid down by the Full Bench of this Court in the cases arising out of Project Schools itself involving interpretation of the aforesaid Circular dated 4.2.1989 and the other issues arising out of the claims of absorption of teachers in the Project Schools. The Full Bench of this Court, in the case of
"24. In some of the cases before us, the petitioners have been refused recognition/regularization of their services on the ground that they did not possess the requisite training qualification of B.Ed. (Bachelor in Education) though they had the certificates of B.T. (Basic Trained). Learned counsel for the petitioners contended that circular No. 142, dated 4th February, 1989, only stipulates trained graduate as the minimum qualification. It does not specify any certificate that the State Government has also recognized B.T. equivalent to B.Ed, for appointment of teachers in Non-Government High School or nationalized schools. Therefore, candidates having B.T. certificates should also be treated as "Trained graduates". In this regard, our attention was drawn to a letter of the Secretary, Human Resources Development Department, dated 18th April, 1996, contained in Annexure 16 and yet another fetter of the same authority, dated 27th June, 1977, as contained in Annexure-16/A to the supplementary affidavit dated 25th January, 1999, filed in CWJC No. 1224, to show that B.T. Certificates are treated equivalent to B.Ed, and Dip-in-Ed. for the purpose of appointment of teachers in Non-Government High Schools or nationalized schools. It was thus contended that respondents are not justified in denying recognition/regularization of the services of such teachers on the ground that they had not passed the B.Ed. Examination.
25. From the aforesaid letters of the Secretary, Human Resources Development Department, it would appear that for the purpose of appointment in a Non-Government High School, B.T. certificates are treated at part with B.Ed, qualification. But in absence of any such circular with respect to the present appointment or admission in the counter affidavit on behalf of the State, I do not feel inclined to hold that certificates of B.T. are at par with B.Ed. qualification. Any person having passed matriculation examination may appear at the B.T. examination conducted by the Secondary School Examination Board and can get a certificate in this regard whereas a person is not entitled to get a degree of B.Ed. Unless he or she had passed the Graduation examination. It has been noticed that the expression "trained graduation" is very well understood for a candidate having Bachelor''s degree in the subject of education in addition to Bachelor''s degree in Arts or Science or Commerce etc. That apart, a certificate of B.T. as noticed above, is granted by the Secondary School Examination Board, whereas the degree of B.Ed, is granted by University. But, however, I may clarify that in spite of the aforesaid views of mine, it will be open to the authorities of the State Government to consider whether a "B.T. certificate" can be equated to that of "B.Ed, qualification" or "qualification of Dip-in-Ed".
26. In the abovementioned group of cases, there are 2-3 gases where petitioners are claiming their regularization/recognition of services since they had passed the physical training examination. Therefore, according to them, they possessed the minimum qualification of trained graduate as required under circular No. 142, dated 4th February, 1989. It has been contended that it would appear from letter No. 6066 dated 24th November, 1986, that the State Government had also accepted that physical trained teachers are in the category of trained graduates and, therefore, entitled for appointment to the post of teachers or Headmaster. A reference in this regard was also made to a decision of this Court in the case of Kumar Kant Choudhary v. The District Education Officer, Darbhanga and Others (1979 BBCJ 184). In that case, question for consideration was whether a physical trained teacher was qualified to be considered for the post of Headmaster and Assistant Headmaster in terms of the provisions of Rule 4 of the Bihar High School (Service Conditions) Rules, 1972. It was noticed that having regard to the provisions of the Rules, petitioner of that case was one of the trained graduate teachers of the school as such sufficiently qualified to be considered for the post of Headmaster.
27. In my view, the said decision of this Court rendered in the abovementioned case, or circular No. 6066, dated 24th November, 1986, are with respect to schools of different category. Therefore, it would not be proper to apply the ratio of that case or the provisions contained in the said circular to the teachers of the Project Schools. That apart, as I have already noticed, expression "trained graduate" as prescribed under circular No. 142, dated 4th February, 1989 would mean a candidate having Bachelor''s degree in the subject of Education in addition to Bachelor''s degree in any of the subjects of Arts or Science or Commerce."
(Underlining for emphasis)
12. Let it be noted that the aforementioned judgment of the Full Bench was approved by the Apex Court also in the case of
"90. So far as educational qualification of the teaching staff is concerned, we are of the opinion that having regard to the fact that the limited number of teachers were to be appointed with a view to accomplish a constitutional goal of spreading literacy in the villages, particularly amongst the girls, the standard adopted in Zila Schools or Government Schools constituted in urban areas may not be insisted upon, as was observed by the High Court, but keeping in view the fact that it is essentially a Government function, the question as to whether some teachers having B.T. training or training in Physical Education would be allowed to continue in the said Project Schools or not is left to the State, wherefore a decision in a decision in accordance with law may be taken."
13. It is an admitted fact that subsequently, the State Government had made screening of the teachers of the school and in the school of the petitioner only 02 teachers have been absorbed and the cases of other teachers namely, Smt. Kumari Saroj Sinha, Sri Parmeshwar Pathak (the petitioner), Sri Shiv Narayan Choudhary, Sri Kumar Ram Ekbal Singh, Sri Arbind Kumar Singh, Sri Ramdeo Prasad Singh, and Sri Shashank Chandra Pathak were rejected by a reasoned order dated 22.7.2008, which reads as follows:--
14. It is very significant to note here that when the petitioner had filed a representation, he did not deny the fact that he had only the qualification of being a teacher for physical trained teacher and in fact he had tried to equate his case with those Project Schools which were taken over in the first phase in the year 1981-82. This Court, however, will have no difficulty in holding the petitioner ineligible because he himself in paragraph 4 of the writ application has stated as follows:--
"4. ...The State Government in the Financial Year 1984-85 identified and selected 300 blocks with a view to complete the target of establishing one Girls High School in each of them vide Govt. Letter No. 12(C) dated 25.1.1985. The State Government, Department of Education vide Govt. letter No. 108 dated 12.2.1985 selected 75 Girls High Schools in each 75 blocks out of the selected 300 blocks, but the State functionaries field more impediments in selection of the school sitting in Headquarter as such, the State Govt. Department of Education, constituted a Three Man Committee headed by the District Magistrate of the concerned district authorizing with the same power to select the schools within their respective district vide Govt. letter No. 142 dated 23.2.1985. The school of the petitioner has been selected by the Three Man Committee, which is admitted position as services of some of teaching and non-teaching staffs of the school has been recognized treating the school validly selected."
15. Thus, once the petitioner admits that the school in question was made a Project School in second phase in 1985, there would be no difficulty in the applicability of the aforementioned Circulars and the petitioner, therefore, was not entitled for absorption of his service as there was no sanctioned post of physical trained teacher amongst staffing pattern of 09 sanctioned posts of teachers, cannot be permitted to raise any issue now which has already been concluded by the Full Bench of this Court in the case of Project Uchcha Vidyalaya Shikshak Sangh (supra).
16. Judged in this background, this Court also would not find any error in the impugned order dated 11.5.2010 which only reiterates earlier decision dated 22.7.2008 by once again rejecting the cases of 07 out of 09 teachers of the school including the petitioner on the ground of either sanctioned post being not available or the person concerned being untrained.
17. The instances cited by the petitioner that in some other cases services have been absorbed, having been not raised in the representation filed by him on 19.12.2011, this Court would refuse to examine this aspect inasmuch as the impugned order could not have taken note of the aforementioned aspect.
18. The law also is well settled that in order to make out a case of discrimination, one has to establish his own right because illegality allowed in one case cannot be perpetuated in another case as well. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of the
"67. By now it is well settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order--
19. It has to be also kept in mind that the petitioner, after the order dated 22.7.2008, has remained with no claim for his being absorbed in service and, therefore, this Court cannot allow reopening of the stale matter specially when the petitioner has approached this Court after considerable delay of more than three to five years.
20. It thus becomes clear that the petitioner had made a belated attempt to re-open a stale issue which was already settled in his cases in the year 2008 by passing the order rejecting the cases for absorption vide order dated 22.7.2008 and which was only reaffirmed by the impugned order dated 19.4.2010. The petitioner, however, have filed this writ application on 8.8.2013 without explaining the delay of more than at least three to five years even from the date of last order. The only ground for them in moving this Court belatedly is that in some other cases this Court has passed favourable orders for absorbing the services of teachers in Project Schools. Firstly, no cases has been brought forward by the learned counsel for the petitioner as with regard to persons like the two petitioner who claims their absorption only on the basis of their having qualification of training in physical education. Secondly, this Court must hold that the petitioner could not have sat on fence till someone else''s case was decided and then reagitate his claim which he had not pursued for several years.
21. By now it is well settled that if a person is not vigilant he cannot ask the Court to grant relief only on the basis of law declared in some other cases. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of
22. The further plea of the learned counsel for the petitioner that the petitioner was awaiting the result of his representation after his case for absorptions was rejected can also not sufficiently explain the delay of more than three years even from the date of rejection of the representation of the petitioner. Such delay is not condonable as was held by the Apex Court in the case of
23. The whole issue as with regard to delay disentitling even the plea of discrimination was beautifully summed up by the Apex Court in the case of Bhup Singh (supra), wherein it was held as follows:--
"No attempt has been made by the petitioner to explain why he shoes to be silent for so long, if he too was interested in being reinstated and had not abandoned his claim, if any. If the petitioner''s contention is upheld that lapse of any length of time is of no consequence in the present case, it would mean that any such police constable can choose to wait even till he attains the age of superannuation and then assail the termination of his service and claim monetary benefits for the entire period on the same ground. That would be a startling proposition. In our opinion, this cannot be the true import of Article 14 or the requirement of the principle of non-discrimination embodied therein, which is the foundation of petitioner''s case."
24. Thus, for the reasons indicated above, this Court is of the considered view that the petitioner even on merit has no case. That being so, this writ application is dismissed both on the ground of delay and laches as well as on merit.
