Patna High Court
Zubeire Nuzhat Jahan HyderversusThe State Of Bihar and Ors
- Decided
- Disposal
- DISMISSED
- Bench
- NANI TAGIA
Holding
An appointment made without the statutorily required teacher‑training qualification at the time of appointment is invalid and cannot be regularised by later acquisition of the qualification.
Summary
The petitioner, Zubeire Nuzhat Jahan, was appointed as Lady Assistant Teacher (Physics) in Ayub Urdu Girl’s High School in 2003 without possessing the mandatory B.Ed. qualification required by the Bihar Non‑Government Secondary Schools (Taking Over, Management and Control) Act, 1981 and the 1983 Service Conditions Rules. After serving for 13 years and obtaining a B.Ed. in 2005, the State rejected the approval of her appointment in 2016 on the ground that she lacked the required qualification at the time of appointment. The petitioner contended that subsequent acquisition of the B.Ed. satisfied Section 4(2) of the Take‑Over Act and relied on earlier judgments allowing regularisation after later qualification. The respondents argued that statutory qualification must exist at the time of appointment and that executive instructions cannot override the statutory rule. The Court examined Supreme Court precedents emphasizing that eligibility must be met at the date of appointment and that executive instructions cannot supplant statutory requirements. Concluding that the petitioner was not qualified at the time of appointment and that the 2016 rejection order was legally sound, the Court dismissed the writ petition.
Issues considered
- The appointment of the petitioner was valid despite the absence of a B.Ed. qualification at the time of appointment.
- Whether subsequent acquisition of the required B.Ed. qualification validates the appointment under Section 4(2) of the Bihar Non‑Government Secondary Schools (Taking Over, Management and Control) Act, 1981.
- Can executive instructions, such as the 1991 HRD Department resolution, override the statutory qualification requirement in the 1983 Rules?
Subjects
- teacher appointment
- B.Ed qualification
- statutory qualification requirement
- executive instruction vs statutory rule
- Bihar Non‑Government Secondary Schools Act
- service regularisation
- writ petition
- qualification at time of appointment
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14666 of 2016
======================================================
Zubeire Nuzhat Jahan Hyder W/o Mr. Jawed Irfan D/o Late Mr. Raza Haider,
resident of new Azimabad, Colony Sector- A, P.S.- Sultanganj, P.O.-
Mahendru, District- Patna 800006.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary Human Resources
Development Department, Govt. of Bihar, Patna
2. The Director, Secondary Education Govt. of Bihar, Patna.
3. The Secretary, Bihar Staff Selection Commission, Vetnary College, Patna.
4. The District Education Officer, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. D.K. Sinha, Sr. Advocate
Mr. Md. Fazal Rahman, Advocate
Mr. Anisur Rahman, Advocate
Mr. Md. Ehsanur Rahman, Advocate
Mr. Nooren Rahman, Advocate
Mrs. Ibrat Adnan, Advocate
For the Respondent/s : Mr. Madhaw Pd. Yadav- GP-23
Mr. Arvind Kumar, AC to GP-23
For B.S.S.C. : Mr. Sanjay Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
CAV JUDGMENT
Date of hearing: 22.08.2025
Date of Judgment: 13.02.2026
Heard Mr. D.K. Sinha, learned Sr. Counsel for the
petitioner, Mr. Madhaw Pd. Yadav, learned G.P.-23, representing
the respondent-State and Mr. Sanjay Kumar, learned counsel for
the B.S.S.C.
2. By means of this writ petition, the petitioner has
prayed for the following relief(s):-
“1(A) For quashing order bearing memo no.
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613 dated 12.07.2016 issued under the signature of
the Director, Secondary Education Department of
Education Patna by which the proposal of approval
of appointment/recognition of the service of the
petitioner was rejected on the ground that the
petitioner had not teacher training certificate B.Ed
degree at the time of appointment as Assistant
teacher in Minority School despite the fact that the
petitioner continued in service for 13 years.”
3. The brief facts of the case is that in pursuance to an
advertisement dated 30.03.2003 (Annexure-1), the petitioner
had applied for the post of Lady Assistant Teacher (Science) in
Ayub Urdu Girl’s High School-cum-Inter College, Lalbagh,
Patna. Subsequently, vide letter dated 18.06.2003 (Annexure-2),
issued by the Joint Secretary (Admn), Ayub Urdu Girl’s High
School-cum-Inter College, Lalbagh, Patna, the petitioner was
called to appear in the written examination and the interview for
the post of Lady Assistant Teacher (Science) in Ayub Urdu
Girl’s High School-cum-Inter College, Lalbagh, Patna on
07.07.2003, in which, the petitioner appeared.
4. Vide Memo No. AUGHS/224/03 (Annexure-3),
dated 15.10.2003, issued by Honorary Secretary, Ayub Urdu
Girl’s High School-cum-Inter College, Lalbagh, Patna, the
petitioner was appointed on the post of Lady Assistant Teacher
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(Physics) in Ayub Urdu Girl’s High School- cum- Inter College
Lalbagh, Patna, subject to approval of the State Government and
the petitioner joined the said post on 16.10.2003 (Annexure-
3/1).
5. The Principal, Ayub Urdu Girl’s High School-cum-
Inter College, Lalbagh, Patna vide letter no. 72 dated
17.05.2006 sent a proposal to the District Education Officer,
Patna for approval of the petitioner’s appointment as Lady
Assistant Teacher (Science), Ayub Urdu Girl’s High School-
cum-Inter College, Lalbagh, Patna, which was returned by the
District Education Officer, Patna, vide letter no. 1776 dated
24.07.2006 (Annexure-4), stating therein that the petitioner was
not having the requisite certificate/qualification at the time of
appointment.
6. In reply to the letter no. 1776, dated 24.07.2006,
issued by the District Education Officer, Patna, the Principal,
Ayub Urdu Girl’s High School-cum-Inter College, Lalbagh,
Patna, vide letter dated 09.08.2006 (Annexure-5), again sent the
proposal to the District Education Officer, Patna for approval of
the petitioner’s appointment as Lady Assistant Teacher
(Science), in Ayub Urdu Girl’s High School-cum-Inter College,
Lalbagh, Patna stating therein that the petitioner was appointed
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by the Managing Committee on the basis of recommendation
made by the Selection Committee constituted for the
appointment, as in the school, there was requirement of a
Science Teacher having computer knowledge/degree and after
following due procedure, the petitioner was appointed on the
post of Lady Assistant Teacher (Science).
7. The District Education Officer, Patna vide letter no.
1001 dated 18.06.2011 (Annexure-10) sent a proposal to the
Secretary, Bihar Staff Selection Commission, Patna for approval
of the petitioner’ appointment as Lady Assistant Teacher
(Science) in Ayub Urdu Girl’s High School-cum-Inter College,
Lalbagh, Patna. Subsequently, the Bihar Staff Selection
Commission sent the said proposal to the Director, Secondary
Education, for approval of the petitioner’s appointment as Lady
Assistant Teacher (Science) in Ayub Urdu Girl’s High School-
cum-Inter College, Lalbagh, Patna, which was rejected by the
Director, Secondary Education vide Memo No. 613 dated
12.07.2016 (Annexure-11), on the ground that the petitioner was
not having requisite qualification/degree at the time of her
appointment as Lady Assistant Teacher (Physics) in Ayub Urdu
Girl’s High School-cum-Inter College, Lal Bagh, Patna.
8. The aforenoted rejection order dated 12.07.2016 is
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under challenge in the present writ petition.
9. Respondent no.2/the Director, Secondary
Education, Government of Bihar, Patna has filed a counter
affidavit, wherein, it has been stated that the appointment of the
petitioner was made contrary to the advertisement dated
30.03.2003 and the provisions laid down under Section 18 of the
Bihar Non-Govt. Secondary Schools (Taking Over,
Management and Control) Act, 1981, which prescribes the
educational qualification of the teachers of nationalized
Secondary School, which has been made applicable also to the
teachers of Minority Secondary Schools. It has further been
stated in the counter affidavit that in an identical matter, this
Court in C.W.J.C. No. 7923 of 2013 (Asha Rani Vs. the State of
Bihar & Ors.) was pleased to dismiss the case of the petitioner
therein on the ground that the petitioner was not holding the
degree of B.Ed at the time of appointment.
10. The Secretary, Bihar Staff Selection Commission,
Patna/respondent no.3 has also filed a counter affidavit, wherein
it has been stated that as per the provisions made in the Bihar
Non-Government Secondary School (Management and Control)
Amendment Act, 2011, the power regarding the approval of
appointment of teachers of Minority Schools is vested with the
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Director, Secondary Education and the Director, Secondary
Education, Government of Bihar has rejected the proposal for
approval of appointment of the petitioner as Lady Assistant
Teacher (Science) on the ground that at the time of appointment,
the petitioner did not possess the requisite qualification.
11. Learned senior counsel for the petitioner submits
that pursuant to the advertisement dated 03.03.2003, the
petitioner applied for the post of Assistant Teacher (Science) in
Ayub Urdu Girls High School-cum-College, participated in the
written test and interview held on 07.07.2003, and was
recommended by the duly constituted Selection Committee. On
the basis of the recommendation of the Selection Committee,
the Managing Committee issued appointment letter dated
15.10.2003 (Annexure-3). The petitioner joined service on
16.10.2003 and continuously discharged her duties sincerely for
13 years. At the time of her appointment, the petitioner
possessed Master’s degree in Computer Science, which was the
highest qualification among all candidates. She subsequently
acquired the required B.Ed. qualification in 2005.
11.1. Learned senior counsel for the petitioner further
submits that the Principal of the institution forwarded proposals
for approval of the petitioner’s appointment in the prescribed
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proforma to the District Education Officer, Patna. However, the
District Education Officer, Patna rejected the proposal solely on
the ground that the petitioner was not having the requisite B.Ed.
qualification at the time of her appointment.
11.2. It is further submitted by learned senior counsel
for the petitioner that the impugned rejection order (memo no.
613 dated 12.07.76 / Annexure-11) completely ignores the fact
that the petitioner had worked uninterruptedly for 13 years; she
obtained the requisite training (B.Ed.) in 2005, long before the
State initiated the present proceedings and the law laid down by
the Hon’ble Court in several judgments that subsequent
acquisition of training fulfills the mandate of Section 4(2) of the
Act.
11.3. Learned counsel for the petitioner in support of
his contention, has relied on the Judgment reported in PLJR
2003 (2) 303 (Chhathi Mishra @ Sri Chhathu Mishra & Anr.
Vs. The State of Bihar & Ors.), to contend that if a teacher
acquires the requisite qualification during the pendency of the
LPA, his/her appointment cannot be invalidated, as the essential
requirement of Section 4(2) stands complied with. Also relied
on is the Judgment dated 18.07.2016 passed in L.P.A. No. 136
of 2015 (Mr. Subhash Kumar Vs. The State of Bihar & Ors.)
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to contend that requirement of teachers training, as provided
under the Rules, has been done away with by the Human
Resources Development Department resolution dated 5th of
March, 1991, issued by the Commissioner and Secretary,
Human Resources Development Department, Bihar in the name
of Governor, Bihar under Memo No. 10/v 3-56/88 (part) E-116.
Accordingly, there was no requirement of teachers training
qualification at the time the petitioner was appointed on
15.10.2003.
11.4. Learned senior counsel for the petitioner further
submits that the petitioner stands on identical footing as the
teachers in the above-mentioned judgments. She acquired B.Ed.
in 2005, and, therefore, approval of her service must be granted
with all consequential benefits.
12. On the other hand, learned counsel for the
respondents submit that the petitioner claims approval of her
appointment as Assistant Teacher in Ayub Urdu Girls High
School-cum-Inter College, Lalbagh, Mahendru, Patna on the
basis of appointment letter dated 15.10.2003, issued by the
Managing Committee. However, such appointment is contrary
to the mandatory statutory requirement prescribed under Section
18 of the Bihar Non-Government Secondary Schools (Taking
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Over, Management & Control) Act, 1981, which makes
applicable the same qualifications for the teachers of minority
secondary schools as are applicable to the teachers of
nationalized secondary schools. In both categories, B.Ed. degree
is one of the essential qualifications. The appointment of the
petitioner was made in clear violation of statutory provisions as
well as the conditions of the advertisement (Annexure-1 of the
writ petition) and hence the appointment of the petitioner is
quite illegal since very inception.
12.1. Learned counsel for the respondents further
submit that identical issue has already been decided by this
Hon’ble Court in CWJC No. 7923 of 2013 (Asha Rani vs.
State of Bihar & Ors.), wherein the writ petition was dismissed
on the ground that the petitioner therein did not possess the
B.Ed. degree at the time of appointment.
12.2. It is further submitted that the judgment passed
in LPA No. 136 of 2015 (Subhash Kumar vs. State of Bihar)
is not applicable to the present case, as the relaxation referred
therein was granted by an executive instruction as contained in
memo no. 116 dated 05.03.1991 which is applicable only to
taken-over schools where qualification for B.Ed. was relaxed in
specific circumstances and in view of the aforesaid facts and
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circumstances, the writ petition is devoid of any merit and is
liable to be dismissed.
12.3. The respondents in support of their contentions
have relied on the following judgments:-
i. Prit Singh vs. S.K. Mangal, 1993 Supp (1)
SCC 714
ii. Hosiar Singh vs. State of Haryana, 1993 SCC
2606
iii. AIR 2010 SC 1937 – Fuljit Kaur vs. State of
Punjab
iv. AIR 2006 SC 898 – K.K. Bhala vs. State of
M.P.
v. AIR 2014 SC 746 – Basawaraj & Ors. vs.
Special Land Acquisition Officer
13. Heard the learned counsel appearing for the
contesting parties.
14. It appears that advertisement dated 30.03.2003
was issued by Honorary Secretary, Ayub Urdu Girl’s High
School-cum-Inter College, Lalbagh, Patna inter alia indicating
that Lady Assistant Teacher (science) is wanted with minimum
qualification of B. Sc (Hons.) preferably in Physics with B. Ed.
degree. Upon participation by the petitioner in terms of the
aforesaid advertisement, she was appointed as Assistant Teacher
(Physics) in Ayub Urdu Girl’s High School-cum-Inter College,
Lalbagh, Patna on 15.10.2003, vide Memo No. AUGHS/224/03
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(Annexure-3). Subsequently, the proposal for approval of the
appointment of the petitioner as Assistant Teacher (Physics) in
Ayub Urdu Girl’s High School-cum-Inter College, Lalbagh,
Patna was initiated by the School Management Committee,
which was rejected by the Director, Secondary Education vide
impugned order dated 12.07.2016, contained in Memo No. 613
(Annexure-11) on the ground that the petitioner did not have the
required teacher training qualification. The aforesaid rejection
order dated 12.07.2016 has been challenged by the petitioner in
this writ petition contending that there is no requirement of
teacher training qualification for appointment as Assistant
Teacher (Physics) in Ayub Urdu Girl’s High School-cum-Inter
College, Lalbagh, Patna. Alternatively, an argument has been
made that the petitioner, after her appointment as Assistant
Teacher (Physics), has obtained teachers training qualification
on subsequent date and that proposal for approval of her
appointment as Assistant Teacher (Physics) in Ayub Urdu Girl’s
High School-cum-Inter College, Lalbagh, Patna could not have
been rejected. In support of aforenoted two fold contentions, the
petitioner has primarily relied on two decisions of this Court,
first as reported in PLJR 2003 (2) 303 (Chhathi Mishra @ Sri
Chhathu Mishra & Anr. Vs. The State of Bihar & Ors.) and the
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second decision rendered in L.P.A. No. 136 of 2015 (Subhash
Kumar Vs. The State of Bihar & Ors.).
15. It is an admitted position that the petitioner, at the
time of her appointment, did not have the teachers training
qualification. The appointment of Assistant Teacher (Physics) in
Ayub Urdu Girl’s High School-cum-Inter College, Lalbagh,
Patna is regulated by the Bihar Non-Government Secondary
Schools (Taking Over, Management & Control) Act, 1981
(hereinafter referred to as the Act of 1981) and the Rules framed
thereunder, namely, Bihar Government Secondary School
(Service Conditions) Rules, 1983 (hereinafter referred to as the
Rules of 1983).
16. Advertisement dated 30.03.2003, issued by
Honorary Secretary, Ayub Urdu Girl’s High School-cum-Inter
College, Lalbagh, Patna would go to show that the educational
qualification prescribed for the post of Assistant Teacher
(Physics) was graduate with B.Ed. The advertisement, therefore,
had clearly specified that along with the educational
qualification of graduate, preferably in physics, there was also
requirement of candidate possessing B.Ed. Degree. The
essential educational qualification prescribed in the
advertisement dated 30.03.2003 is found to be in consonance
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with the educational qualification prescribed for appointment of
Assistant Teacher under Rule 4(C) of the Rules of 1983, which
inter alia provides that for appointment of Assistant Teacher, the
essential qualification is bachelors degree in Arts, Science and
Commerce from a recognised university and B.Ed/diploma in
Education/Diploma in Teaching/.C.T. awarded by the
recognized University, a Board recognised by the State
Government or the Education Department of the State
Government or an equivalent teacher training qualification
declared by the State Government.
17. Thus there is no dispute on the facts that in the
advertisement and the Rules of 1983 framed in pursuance of
Section 9 of the Act of 1981, the essential qualification required
for appointment of Assistant Teacher in Ayub Urdu Girl’s High
School-cum-Inter College, Lalbagh, Patna is graduate with
teachers training qualification mentioned therein such as B.Ed.,
Diploma etc. and that the petitioner was not in possession of
teachers training qualification at the time of her appointment.
18. In the backdrop of the aforenoted facts, what
arises for determination by this Court is whether the rejection of
the proposal for approval of the appointment of the petitioner as
Assistant Teacher (Physics) in Ayub Urdu Girl’s High School-
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cum-Inter College, Lalbagh, Patna by the Director, Secondary
Education, Government of Bihar on the ground that the
petitioner does not possess the teacher training qualification, is
justified?
19. Law regarding possession of prescribed
qualification at the time of appointment is no longer res integra
and is well settled by now that the person appointed to a post
must possess the prescribed educational qualification for the
post at the time of appointment. In this regard, a reference may
be made to a decision of Hon’ble Supreme Court rendered in the
case of Dr. Prit Singh Vs. S.K. Mangal & Ors. reported in
1993 Supp (1) Supreme Court Cases 714, wherein in
paragraph no. 13 thereof, it has been held as under:-
“13. ………….If he was not eligible for
appointment in terms of the prescribed
qualifications on the date he was appointed by the
Managing Committee subject to the approval of the
Vice Chancellor, then later he cannot become
eligible after the qualifications for the post were
amended. As such we are in agreement with the
view expressed by the High Court, that on the date
of the appointment the appellant did not possess the
requisite qualifications and as such his
appointment had to be quashed.”
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20. Similarly, in the case of Hoshiar Singh Vs. State
of Haryana & Ors reported in AIR 1993 Supreme Court 2606
it has been held in paragraph no. 11, which reads as under
“Once it is held that the standards for
physical fitness which have been laid down in
the advertisement could be so prescribed, the
matter of relaxation of the said standards
would depend on the terms of the
advertisement. The advertisement and the
corrigendum are silent about relaxation of the
said standards by the Board. In these
circumstances, the Board could not, on its
own, relax the standards of physical fitness as
mentioned in the advertisement and the
corrigendum”.
21. Likewise, in the case of District Collector and
Chairman, Vizianagaram Social Welfare Residential School
Society, Vizianagaram Vs. M. Tripura Sundari Devi, reported
in 1990 (3) SCC 655, wherein the minimum essential
qualification mentioned in the advertisement was second class
postgraduate and the respondent who had third class post-
graduate degree was appointed, the Hon’ble Supreme Court,
disapproving the said appointment, has held as under:-
“It must further be realised by all concerned that
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when an advertisement mentions a particular
qualification and an appointment is made in
disregard of the same, it is not a matter only
between the appointing authority and the appointee
concerned. The aggrieved are all those who had
similar or even better qualifications than the
appointee or appointees but who had not applied
for the post because they did not possess the
qualifications mentioned in the advertisement. It
amounts to a fraud on public to appoint persons
with inferior qualifications in such circumstances
unless it is clearly stated that the qualifications are
relaxable. No court should be a party to the
perpetuation of the fraudulent practice.”
22. Similarly, in the case of K.K. Bhalla Vs. State of
M.P. & Ors. reported in AIR 2006 Supreme Court 898,
Hon’ble Supreme Court in paragraph no. 60 observed as under:-
“60. The development plan was prepared in
terms of the 1973 Act and the Rules framed
thereunder. Change of user, we have not been
shown, is permissible under the Act or the Rules.
In the absence of such a provision and/or without
following the statutory requirements therefor, if
any, the State in exercise of its executive power
could not have directed that lands meant for use
for commercial purposes may be used for
industrial purposes.”
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23. The other two decisions relied on by the learned
State Counsel rendered in the case of Fuljit Kaur (Supra) and
Basawaraj (Supra) are for the proposition that illegality
committed earlier cannot be perpetuated inasmuch as equality
under Article 14 of the Constitution of India is a positive
concept and it does not envisage for negative equality.
24. It, thus, becomes clear from the aforenoted
decisions rendered by Hon’ble Supreme Court that the person
appointed must possess the requisite essential educational
qualification at the time of appointment and there can be no
relaxation to such prescription unless it has been specifically
provided either in the advertisement or in the Rules and such
relaxation can be made strictly in terms of provisions of
relaxation contained either in the advertisement or in the Rules.
In the absence of any such provision for relaxation in the
advertisement or in the Rules, possession of requisite
educational qualification at the time of appointment is sine qua
non for the appointment to be valid and legal.
25. In the light of aforenoted legal provision, the
impugned order dated 12.07.2016, issued by the Director,
Secondary Education, Government of Bihar rejecting the
proposal for appointment of the petitioner as Assistant Teacher
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(Physics) in Ayub Urdu Girl’s High School-cum-Inter College,
Lalbagh, Patna on the ground of lacking of teachers training
qualification prescribed in the advertisement as well as in the
Rules at the time of her appointment, does not appear to suffer
from any legal infirmity.
26. After having found that the impugned order dated
12.07.2016 does not appear to suffer from any legal infirmity,
the two decisions of this Court rendered in the case of Subhash
Kumar (Supra) and Chhathi Mishra (Supra) relied on by the
petitioner, need to be considered and discussed to find out as to
whether the two decisions rendered by this Court are of any help
to the petitioner.
27. The appellant of L.P.A. No. 136 of 2015, namely
Subhash Kumar, was appointed on the post of Teacher in
Economics in Sri Guru Govind Singh Girls High School, Patna
City pursuant to advertisement and selection made by duly
constituted selection committee vide appointment letter dated
14.11.2003 and pursuant thereto, the appellant joined the service
on 18.11.2003. As the appellant did not possess B.Ed. Degree,
the appellant, after taking due permission of the management
committee of the school, obtained B.Ed. degree in the year 2010
from an affiliated unit of Magadh University duly recognized by
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the N.C.T.E. Proposal moved for approval of the appointment of
the appellant as Assistant Teacher in economics in Sri Guru
Govind Singh Girls High School, Patna City was rejected vide
Memo No. 390, dated 30.03.2013 by the Director, Secondary
Education, Government of Bihar, Patna on the ground that the
appellant did not possess B.Ed. Degree and was also overaged at
the time of his initial appointment. The appellant, challenging
the aforenoted order dated 30.03.2013 rejecting the proposal for
approval of his appointment on the post of Assistant Teacher,
filed a writ petition being C.W.J.C. No. 14248 of 2013, which
was disposed of by learned Single Judge vide order dated
30.07.2013 directing for approval of the service of the appellant
with effect from 25.10.2010. The order of learned Single Judge
was put to challenge in L.P.A. No. 136 of 2015. The Hon’ble
Division Bench of this Court, while recognizing the statutory
requirement under Rule 14 (C) of the Rules of 1983 for
appointment of teacher that there is a requirement of teachers
training qualification such as B.Ed., Diploma in
Education/Diploma in teaching in addition to bachelor degree in
Arts, Science and Commerce from a statutory University, has,
however, by relying on resolution dated 5 th of March, 1991,
issued by the department of Human Resources Development
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under the signature of Commissioner and Secretary, Human
Resources Development Department on behalf of the Governor
of Bihar, held that the appointment of the appellant by the
Managing Committee dated 14.11.2003 was in accordance with
law and cannot be said to be irregular much less illegal. The
Court accordingly held that the appointment of the appellant
was in accordance with prescribed Rules and therefore, the
appellate Court set aside the judgment of learned Single Judge
by holding that the appellant is entitled for approval of his
services with effect from the date on which he joined the school
pursuant to his appointment by the Managing Committee of the
school with all consequential benefits. While holding as above,
the Hon’ble Division Bench was of the view that the
requirement of B.Ed. degree from a recognized institution as
stipulated in Rule 4(C) of the Rules of 1983 has been
waived/ended by the resolution of the State Government
containing Memo No. 116 dated 5th of March, 1991.
28. In holding that the requirement of B.Ed. degree
from a recognized institution under Rule 4(C) of Rule, 1983 has
been waived/ended, the Hon’ble Division Bench appears to
have relied on Clause 3(a) of the resolution dated 5th of March,
1991, wherein it has been provided that the compulsion of
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training in teacher’s appointment is abolished. The resolution
dated 5th of March, 1991, which abolishes the compulsion of
training in teacher’s appointment has been quoted by the
Hon’ble Division Bench in the judgment rendered in the L.P.A.
For appreciation of the nature and character of the resolution
dated 5th of March, 1991, the same is also reproduced herein as
quoted in the judgment passed in the L.P.A. which reads as
under:-
“Human Resources Development Department
Resolution
Patna, dated 5th March, 1991
Subject:-Arrangement for training during service period.
The Government and Non-Government teachers
training colleges are being run within the State of Bihar.
These training colleges are of two type-The matriculate
students get admission in one type of college and
graduates are admitted in other type of college. Two years
training is imparted in the first type of college and nine
months training is imparted in the second type colleges.
The candidates who have obtained training from these
colleges, are appointed in the schools upto the level of
Primary to Secondary schools and at the same time, they
are appointed in teachers training colleges too. The
matriculation trained candidates are appointed in Primary
and Middle Schools, as per their class on the basis of their
success in examination after preparing a panel of
appointment. Hence, there is a race for admission in these
training colleges. The admission in the Government
Teacher Training Colleges (Matric and Graduation) is
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taken as per merit list but corrupt practices are prevalent in
the Non-Government Teachers Training Colleges due to
which these have turned into a source of monetary gain.
2. Keeping in view the aforesaid circumstances, the
State Government has promulgated an Act which contains
provision that no any institution or person can establish
any type of Teachers Training College without obtaining
prior approval of the Government. At the same time, the
State Government has laid conditions for
recognition/affiliation of such intuitions, vide Notification
No. -1107 dated 25/11/87 of the Department; but it has not
made any difference at all.
3. Hence, in the aforesaid context, the State
Government has taken following decision to remove
corruption in the Non- Government Teachers Training
Colleges and improve the level of training there:-
(a) The compulsion of training in teacher’s appointment is
abolished.
(b) After appointment, training shall be imparted in
Government Training Colleges during service period.
(c) The procedure for appointment to the post of teacher,
shall be based on merit.
(d) The concerned Education Controller shall make
immediately necessary modification in the rules regarding
appointment in the cadre and obtain approval of the
Administration, which shall come into force within the
whole State from the date of issuance of the resolution.
Order:- It is ordered to publish its resolution in the
special issue of Bihar Gazette.
By the order of Governor, Bihar
Sd/- R. K. Srivastava
Commissioner and Secretary
Human Resources Development Department, Bihar
Memo No. 10/v 3-56/88 (part) E-116 Patna, dated 5th
March, 1991 ”
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29. On perusal of the resolution dated 5 th of March
1991, issued by the Human Resources Development
Department, it appears that the said resolution dated 5th of
March, 1991 is in the nature of executive instruction relating to
arrangement for training during service period. In the
circumstances narrated in the resolution dated 5th of March,
1991, the compulsion of training in teacher’s appointment has
been abolished by clause 3(a) thereof. Whatever be the nature of
clause 3(a) of resolution dated 5th of March, 1991 abolishing the
compulsion of training in teacher’s appointment, the said
resolution dated 5th of March, 1991, which is in the nature of
executive instruction cannot override the statutory prescription
of the requirement of teachers training qualification prescribed
under Rule 4(C) of the 1983 Rules, which has been made in
pursuance of Section 9 of the Act of 1981. This is so in the light
of the law laid down by Hon’ble Supreme Court that the
executive instruction cannot override the statutory Rules or Act
as the case may be.
30. In the case of B.N. Nagarajan & Ors. Vs. State
of Mysore and Ors. reported in 1966 SCC OnLine SC 7,
Hon’ble Supreme Court in paragraph no. 5 has held as follows:-
Patna High Court CWJC No.14666 of 2016 dt.13-02-2026
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“5. ………..It is hardly necessary to mention
that if there is a statutory rule or an act on the
matter, the executive must abide by that act or
rule and it cannot in exercise of the executive
power under Article 162 of the Constitution
ignore or act contrary to that rule or act.”
31. In the case of Jaiveer Singh Vs. State of
Uttarakhand reported in 2023 SCC OnLine SC 1584,
Hon’ble Supreme Court has observed in paragraph no. 49
thereof as follows:-
“49. It can thus be seen that it is a trite law that the
Government cannot amend or supersede statutory
rules by administrative instructions, but if the rules
are silent on any particular point, it can fill up the
gaps and supplement the rules and issue
instructions not inconsistent with the rules already
framed. It is a settled proposition of law that an
authority cannot issue orders/office
memorandum/executive instructions in
contravention of the statutory rules. However,
instructions can be issued only to supplement the
statutory rules but not to supplant it.”
32. Hon’ble Supreme Court in the case of Bank of
Baroda & Anr. Vs. G. Palani & Ors. reported in (2022) 5 SCC
612 in paragraph no. 14 thereof has observed as follows:-
“14. First we come to the rigour of the
Regulations. The Regulations have statutory
Patna High Court CWJC No.14666 of 2016 dt.13-02-2026
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force, having been framed in exercise of the
powers under Section 19(2)(f) of the 1970 Act
and are binding. They could not have been
supplanted by any executive fiat or order or Joint
Note, which has no statutory basis. The Joint
Note of the officers also had no statutory force
behind it and could not have obliterated any of
the provisions of the 1970 Act or the existing
Regulations. Thus, Joint Notes could not have
taken away the rights that were available under
the 1995 Pension Regulations to the Officer.”
33. The Hon’ble Supreme Court in the case of R.
Ranjith Singh & Ors. Vs. State of Tamil Nadu & Ors.
reported in 2025 SCC OnLine SC 1009 has observed in
paragraph no. 19 thereof as follows:-
“19. xxxxx
…….The State Government has certainly
issued various executive directions from time to
time for appointment under the direct recruitment
quota providing reservation to in-service
candidates to the extent of 20%; however, the
rules were never amended till 21.11.2017. It is a
well settled proposition of law that executive
instructions cannot supplant the statutory rules.
They can supplement/clarify the statutory rules.
In the present case, the executive instructions
issued from time to time have in fact supplanted
the statutory rules and such a process is unheard
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of in the field of service jurisprudence.”
34. In view of the aforenoted settled position of law
that the executive instruction cannot override the statutory Rules
or the Act, the decision rendered by Hon’ble Division Bench of
this Court in L.P.A. No. 136 of 2015 cannot come to rescue of
the appellant in view of the admitted position of fact that the
appellant at the time of her appointment did not possess the
teachers training qualification as is required to be possessed
under Rule 4(C) of the 1983 Rules.
35. In the case of Chhathi Mishra (supra) relied on
by the petitioner, the petitioners therein, who did not possess the
requisite training qualification, had preferred the writ petition
being C.W.J.C. No. 1645 of 1983 seeking direction to approve
their services as Assistant Teachers. The said writ petition was
allowed by the learned Single Judge directing the respondents to
approve the services of the petitioners and to pay their salaries
and other emoluments from the date of the notification. They
were further directed to grant facility for their training giving
them at least one chance to obtain B.Ed. degree with a condition
that if the petitioner do not avail the opportunity and thus do not
obtain B.Ed. degree, it will be open to the government to
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terminate the service of the petitioners. The order of the learned
Single Judge was put to challenge by the State of Bihar in
L.P.A. No. 24 of 1984, which was allowed by an order dated
01.11.1999, whereby the direction given by the learned Single
Judge was set aside. The petitioner filed Civil Review No.24 of
2000 seeking review of the order dated 01.11.1999, passed in
L.P.A. No. 24 of 1984 by contending that the petitioners
acquired requisite qualification of training during the pendency
of the L.P.A. in the year 1986, but that fact was not brought to
the notice of the Court as the petitioners did not give such
instruction to their lawyer, which resulted in passing of the order
dated 01.11.1999 in L.P.A. No. 24 of 1984. The review petition
was decided on 8th of January, 2003 by recalling the order dated
01.11.1999 passed in LPA. No. 24 of 1984 by holding that from
the counter affidavit of the State, it appears that the petitioners’
services have already been approved on 29.06.1984 during
pendency of the L.P.A. and that the petitioners have also
acquired requisite qualification and thus fulfilled the condition
envisaged in Section 4(2) of the Take Over Act and, therefore,
nothing stands against them to invalidate their appointment.
36. The aforenoted Civil Review No. 24 of 2000 was
allowed recalling the order dated 01.11.1999, passed in L.P.A.
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No. 24 of 1984 in the peculiar facts and circumstances of that
case that services of the petitioners were already approved on
29.06.1984 during pendency of the L.P.A. which fact was not
brought to the notice of the L.P.A. Court and that the petitioners,
in the meantime had acquired requisite qualification fulfilling
the condition envisaged in Section 4(2) of the Take Over Act. It
was in the aforenoted peculiar facts of the case that the review
petition filed by the petitioner was allowed. The Court, in the
review petition, has not laid down any law of universal
application which can be applied in the present case in favour of
the petitioner that the acquisition of requisite qualification
during the pendency of the proceedings in the Court would
entitle validation of the earlier appointment made dehors the
Rules. The decision rendered in the aforenoted review petition is
clearly distinguishable from the present case and is also of no
assistance to the petitioner.
37. For the reasons and the discussions made
hereinabove, I find no merit in the instant writ petition requiring
any interference on the order dated 12.07.2016, passed by the
Director, Secondary Education, Government of Bihar, Patna
rejecting the proposal for approval of appointment of the
petitioner as Assistant Teacher (Physics) in Ayub Urdu Girl’s
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High School-cum-Inter College, Lalbagh, Patna on the ground
of not possessing the teacher training qualification as prescribed
under the Rules.
38. The writ petition stands dismissed with no order
as to cost.
(Nani Tagia, J)
Amrendra/-
AFR/NAFR AFR
CAV DATE 22.08.2025
Uploading Date 13.02.2026
Transmission Date
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