IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16148 of 2001 BAIDYA NATH MAHTO, son of Late Maheshwar Mahto, resident of village and Post- Mathurapur, Police Station Waris Nagar, District- Samastipur at present working as Orderly at Balika Adarsh Middle School, Gola Bazar Road, District- Samastipur. … Petitioner. Versus 1. THE STATE OF BIHAR through Commissioner-cum-Secretary, Human Resources Department, Bihar, Patna. 2. The Director (Primary Education) New Secretariat Bihar, Patna. 3. The District Superintendent of Education, Samastipur. 4. The Headmistress, Balika Adarsh Middle School, Gola Bazar Road, Samastipur. … Respondents. ----------- 5. 31.08.2010 Heard Mr. Devendra Kumar Sinha, learned senior counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1.(A) that this is an application for issuance of writ in the nature of certiorari quashing the Memo No. 9/M4-389/99-1126 dated 5th July,2001 (Annexure-5) by which the claim of petitioner for payment of earned salary for the period 1.4.1981 to 1.12.1988, May, 93 to Nov, 1994 and again Sept, 97 till date has been rejected. (B) that this application is also for issuance of writ in the nature of Mandamus to respondents to allow the petitioner to work on the post of orderely peon.” 2 Mr. Sinha, learned senior counsel for the petitioner in support of the aforementioned prayer while assailing the order passed by the Director Primary Education dated 5th July 2001 (Annexure-6) would submit that once this fact is beyond controversy that the petitioner was initially appointed on 9.12.1970 in Balika Adarsh Middle School, Gola Bazar Road, Samastipur and though he was continuing on the date on which the school was taken over by the State Government on 9th January 1981 in terms of the Bihar Non- Government Elementary Schools (Taking Over of Control) Act 1976 (hereinafter referred to as „the Act‟), the petitioner will be deemed to have become the government servant in terms of Section 4 of the aforesaid Act. He would, therefore submit that when there are evidence to show that the District Superintendent of Education in the year 1984 had passed order recognizing the service of the petitioner in the school and he had worked on the strength of the same as also could draw salary for the certain period, the logical outcome ought to have been to treat the petitioner‟s services to have already taken over by the State. Alternatively, it has been submitted that those orders of District Superintendent of 3 Education, Samastipur passed in the year 1984 onwards or payment of salary made to the petitioner can be treated to be the order of take over of the service of the petitioner and this Court should accordingly quash the impugned order passed by the Director, Primary Education and issue direction for continuance and payment of salary to the petitioner. Counsel for the State on the other hand would submit that for each of the primary schools to be taken over a specific government order was required to be issued and that is why when the school of the petitioner was taken on 9th January 1981 in terms of Section 3(4) of the Act, the Government had specifically issued the order for recognizing the service of 11 teachers found to have been working on the date of taking over with specific condition of their payment of salary in the prescribed pay scale. He would therefore submit that since the Government order issued in the year 1981 had never included the name of the petitioner as taken over employee, there would be no question of the petitioner being entitled for enjoying the benefit of a government servant. In this context, he has also explained that though the petitioner‟s claim of being 4 appointed in the School in the year 1970 is between him and the Managing Committee of the School but then if the Government had to be bound for such take over of the service of the petitioner there at least had to be a sanctioned post on which his service could have been taken over in the year 1981. In this regard, he has also placed reliance on that portion of the impugned order passed by the Director, Primary Education wherein it has been held that there was no sanctioned post of peon available in any middle school after its abolition in the year 1949 onwards. He has finally submitted that some illegal order of the District Superintendent of Education of the year 1984 which has been deprecated by the Director Primary Education and having made subject matter of further enquiry may not vest with the petitioner a right for being absorbed in the government servant and/or claiming payment of salary for the period 1990 onwards. This Court having taken into consideration the aforementioned submission would find it necessary to first of all put on record the order of take over of the school as contained in Letter of the Special Director to the Government bearing No. 135 dated 9th January 1981 5 which reads as follows Þi=kad & ,l o 3 – 298@79 f'k0 135 fcgkj ljdkj f'k{kk foHkkx izs"kd & Jh ujsUnziky flag] ljdkj ds fo'ks"k lfpo lsok esa & ftyk f'k{kk v/kh{kd] leLrhiqj iVuk] fnukad 9 tuojh 81 fo"k; & ckfydk vkn'kZ e/; fo|ky;] xksyk cktkj] leLrhiqj dk jktdh;dj.k A egk'k;] mi;qZDr fo"k; ij vkids i=kad 638 fnukad 2-8- 80 ds izlax esa fcgkj xSj ljdkjh izkjafHkd fo|ky; ¼fu;a=.k & xzg.k½ vf/kfu;e 1976 dh /kkjk 3 (4) esa fufgr izko/kku ds vurxZr ljdkj ds vkns'kkuqlkj ckfydk vkn'kZ e/; fo|ky;] xksyk cktkj] leLrhiqj dks vf/kxzg.k fuEukafdr f'k{kdksa ds lkFk muds uke ds lkeus vafdr osru ij fd;k tkrk gS%& f'k{kd dk uke osru 1- Jherh ykfyek dqekjh & eSfVªd izf'kf{kr dk osrueku 2- Jherh xk;=h dqekjh & eSfVªd vizf'kf{kr dk fu;r osru 205@& :0 izfrekg A 3- Ekks0 o'khj valkjh & Þ Þ Þ 4- Jh izdk'k & eSfVªd izf'kf{kr dk osrueku 5- Jh lq/kka'kq 'ks[kj izdk'k & Þ Þ Þ 6- Jherh 'kkfUr nsoh & Þ Þ Þ 7- Jh vkse izdk'k flUgk & eSfVªd vizf'kf{kr dk fu;r osrueku 205@& :0 izfrekg A 8- Jherh 'kksHkk dqekjh & eSfVªd vizf'kf{kr dk fu;r osru 205@& :0 izfrekg A 9- Jherh m"kk dqekjh & Þ Þ Þ 10- Jherh t;Jh okyk & Þ Þ Þ 11- Jh jatu dqekj flUgk & Þ Þ Þ 2- vizf'kf{kr f'k{kdksa dks foHkkxh; vkns'k la[;k 1167] fnukad 2-5-80 fd vkyksd esa izf'kf{k.k dh O;oLfkk dh tk; A 3- fo|ky; ds iz/kkuk/;kid vkSj izFke lgk;d f'k{kd dk inLFkkiu ftys dh ojh;rk lwph ls fu;ekuqlkj fd;k tk;xk 6 A 4- ;g vkns'k fo|ky; izcU/k lfefr }kjk py&vpy lEifr ftyk f'k{kk v/kh{kd dks lqiwnZ djus dh frfFk ls gh izHkkoh ekuk tk;sxk A fo'oklHkktu] g0@& ujsUnz 9-1-81 ¼ujsUnziky flag½ ljdkj ds fo'ks"k lfpo Kkikad 57&61 leLrhiqj] fnukad 6-1-82 izfrfyfi fo|ky; mifujh{kd fo|ky; mi fujhf{kdk] leLrhiqj dks bl dk;kZy; ds Kkikad 47&56 fnukad 5-1-82 ds Øe esa rn~uqlkj vko';d dkjZokbZ gsrq izsf"kr A g0@& lhrkjke d.kZ ftyk f'k{kk v/kh{kd] leLrhiqjÞ From the said document about which there is no dispute, it is absolutely clear that when the school of the petitioner was taken over only service of 11 teachers were recognized and they were made government servant on the terms and conditions. Such terms and conditions of the take over therefore would be in consonance with Section 4 of the Act which reads as follows:- “4. consequences of taking over (1) all the assets and properties whether movable or immovable owned or possessed by the schools taken over by the State Government under section 3 including lands, buildings, documents, books and registers relating to the schools shall stand transferred to and be deemed to have come into the possession and ownership of the State Government. (2) Every officer, teacher or other employee holding any office or posts in the 7 school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do unless and until such tenure remuneration, terms and conditions of service are duly altered by the state Government. (3) The service of employees of local bodies working on deputation in the office of the District superintendent of Education, subdivisional education officer-cum- Municipal Education Officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over by the government and such employees shall in case of their opting to Government service, be deemed to have become Government servants, with effect from the date of enforcement of this Act.” Once this aspect becomes clear that the petitioner‟s services were not taken over in the order of the State Government dated 9th January 1981, his remaining part of submission of either getting some relief from D.S.E., Samastipur in the year 1984 or getting some payment of salary on the basis of such order of D.S.E. could be of no avail inasmuch as after the school become government school in the year 1981 D.S.E. had been left 8 with no power to take over service of any person whose name was not included in the order of take over passed by the State Government. Once this aspect becomes apparent, this Court would not be impressed with the remaining submission of learned senior counsel for the petitioner that the petitioner had drawn payment of salary for some period as a government servant, being the peon of the school, inasmuch as it was based on an illegal and unauthorized order of the D.S.E. and for this part the Director in the impugned order had already directed for holding an enquiry against the concerned D.S.E. It is well known that the Government would not be bound by an illegal action of its officers specially when the same is also in the teeth of statute. There is another aspect which could be taken into account for considering the prayer of the petitioner. Payment of salary was being made even when the schools were under the Control of District Board and were regularly functioning under the control of the local education officers. For the purpose of payment of salary the procedure was that the Governing body of the Managing Committee after making appointment would 9 seek approval of appointment from the concerned district level officer i.e. D.E.O and D.S.E.. In the case of the petitioner though it is claimed that his appointment was made in the year 1970, on 9.12.1970 there is no chit of paper to show that his case was ever recommended by the Managing Committee of the School from 9.12.1970 to 9.1.1981, the date on which the school had been taken over. For the first time, the claim of the petitioner was forwarded by the Managing Committee in the year 1984 on a date on which neither Managing Committee had remained in office nor had any power to deal with the service condition of the employee of the school nor the D.S.E had been left with the authority of approving the service of the petitioner. All these undisputed aspects of the matter would lead this Court to come to a conclusive finding that the non-approval of the service of the petitioner for a period of almost 11 years in between 1970 to 1981, while the school was a private school would only fall in line with the stand of the respondents in their impugned order that there was no sanctioned post for peon. The moment, this Court would find that there was no sanctioned post for the petitioner, his appointment 10 made on 9.12.1970 by the Managing Committee could at best have bound only the Managing Committee and not the Government which had clearly made its scheme of take over of the school absolutely clear in the statute i.e. 1976 Act. Thus, this Court would find it difficult to either interfere with the impugned order of the Director, Primary Education or declare the petitioner to be entitled for payment of salary in capacity of peon of the taken over school. That being so, this writ application is wholly misconceived and is accordingly dismissed. kanchan (Mihir Kumar Jha, J.)