CIVIL WRIT JURISDICTION CASE No.3515 OF 2006 (An application under Article 226 of the Constitution of India) 1. MASOMAT KAMLA DEVI WIFE OF LATE BINDESHWARI PRASAD SINGH 2. SANGITA KUMARI DAUGHTER OF LATE BINDESHWARI PRASAD SINGH 3. RAMBHA KUMARI DAUGHTER OF LATE BINDESHWARI PRASAD SINGH, ALL RESIDENT OF PITAUNIA, AT & P.O.- BHADAUR, DISTRICT- PATNA AT PRESENT RESIDING AT BRAJ NIWAS NICHALI KILA GARHPAR, P.S. BIHAR SHARIF, DISTRICT- NALANDA Versus 1. THE STATE OF BIHAR REPRESENTED THROUGH SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 2. DIRECTOR, PRIMARY EDUCATION HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 3. DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA AT BIHARSHARIF, DISTRICT- NALANDA 4. AREA EDUCATION OFFICER, ASTHAWAN, DISTRICT- NALANDA 5. HEAD MASTER, MIDDLE SCHOOL, BIND P.S. BIND, DISTRICT- NALANDA 6. THE ACCOUNTANT GENERAL, BIHAR, PATNA 7. DISTRICT MAGISTRATE, NALANDA, AT BIHAR SHARIF, DISTRICT- NALANDA ----------- For the petitioners : Mr. Nawal Kishore Singh, Advocate For the State : Mr. G.P. IV For the Acct. Gen. : Mr. J.P. Karn, Senior Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA,J. Petitioners through this writ application have prayed for a direction to the respondents for payment of the retiral dues and family pension. The husband of the petitioner no.1 and father of the petitioner nos. 2 & 3 was a Teacher in a privately managed school through its Managing Committee namely, Middle School, Bind, Asthawan, District- Nalanda, an aided elementary school. The deceased employee on attaining the age of superannuation retired on 31st August, 1980. The - 2 - school in question was Nationalized under the Provisions of sub-section 2 of section 3 of the Bihar Non-Government Elementary Schools (Taking over of control) Act, 1976 (hereinafter referred to as the 'Act') vide letter dated 01.12.1980 issued by the State Government as contained in Annexure-10. Pursuant to the above letter the school was finally taken over w.e.f. 22.12.1980 after the movable and immovable properties of the school were handed over to the concerned authority of the State Government vide Annexure-11. The deceased employee died on 07.10.1995. The fact not in dispute that the deceased employee after his retirement on 31.08.1980 till his death at no point of time claimed for payment of the retiral dues. The petitioner no.2, the daughter of the deceased employee, for the first time started claiming for payment of the retiral dues of her deceased father as also claimed for payment of family pension w.e.f. 01.09.1980 in favour of the petitioner no.1 the widow of the deceased employee. The petitioners having not received the claims filed this writ application seeking direction for payment of the pensionary benefits. In course of hearing the learned counsel for the petitioners mainly submitted that although the deceased employee retired on 31.08.1980 but since the school in question would be deemed to have been take over by the State Government under the provisions of sub-section 2 of - 3 - Section 3 of the aforesaid Act with effect from the date as specified in the recommendation of the District Committee constituted under sub-section (4) of section 3 of the said Act. It is further submitted that on perusal of the letter of the State Government vide Annexure-10 it would appear that the recommendations were made prior to 08.04.1980, and as such any other date of taking over of the school in question contrary to the above as taken by the State Government as contained in Annexure-10 although not assailed by petitioners will be deemed to be non-est in the eye of law. Learned counsel for the State on the other hand submits that admittedly the deceased employee realizing the fact that he being not a government servant on the date of his retirement from the privately managed school on 31.08.1980 did not claim for payment of the retiral dues from the State Government even during the long span of time after his retirement till his death in the year 1995. It is further submitted that the petitioner also did not lay any claim for payment of the retiral dues or family pension till 22.09.2004 when the petitioner no.2 submitted an application before the District Superintendent of Education, Biharsharif, Nalanda. It is further submitted that mere recommendation by the District Committee for taking over the school from the - 4 - private management indicating the date of take over is not the final. The final decision rests with the State Government with respect to accepting the recommendation including the date of take over of the concerned school. Reliance is placed on the decision of Apex Court in the case of State of Bihar & Ors. Vs. Ramdeo Yadav & Ors. as reported in 1996(2) P.L.J.R. (SC) 35 as also on a full Bench decision of this Court in the case of Sri Sidheshwar Prasd & Ors. Vs. The State of Bihar & Ors. as reported in 1999(3) P.L.J.R., 490. In the instant case admittedly the State Government took such decision vide letter dated 01.12.1980 as contained in Annexure-10 and stipulated that take over of the school would be effective from the date when the managing committee of the school hands over the assets of the school. The same having been handed over on 22.12.1980 as such the final date of take over of the school in question is 22.12.1980. Notwithstanding the above, it is further submitted that the writ application has been filed after in-ordinate delay without any valid justification for the same, and as such, the writ application deserves to be dismissed on merits as well as on the ground of delay. Upon considering the rival submissions of the parties and their respective pleadings it is an admitted position of fact that the deceased employee retired on 31st of August, 1980 and at no point of time he claimed for - 5 - payment of the retiral dues from the State Government till his death on 7th October, 1995. The petitioner no.2 claiming herself to be the daughter of the deceased employee claimed for payment of the retiral dues and the family pension in favour of petitioner no.1 for the first time on 22.09.2004 vide Annexure-2, thereafter the petitioners did not pursue the matter. The writ application was filed in the year 2006. Considering the entire facts and circumstances noticed above, it is clear that the writ application suffers from inordinate delay and latches. The deceased employee retired on 31.08.1980 and died on 07.10.1995 and in between the same no claim was made by him. The petitioner no.2 for the first time represented her claim as per her letter dated 22.09.2004 vide Annexure-2. It is well settled that unexplained delay defeats the right. The writ application in the normal course could had been dismissed on the ground of delay and latches alone, however since the matter is with respect to the claim for payment of retiral dues, as such, this Court inclined to consider the grievances on merits as well. The relevant consideration which has serious bearing on the question for payment of retiral dues/family pension by the State Government is as to whether the deceased employee was a Government Servant on the date of taking over of the school in question. According to the petitioners, the date of - 6 - taking over of the school shall be the date as mentioned in the recommendation of the District Committee in respect of the school in question under sub-section 4 of section 3 of the Act which is prior to the date 08.04.1980 which finds reference in Annexure-10. The learned counsel for the State submitted that the report of District Committee for take over of the school as also the date of taking over would be final only after recommendation is accepted by the State Government. The Government is not bound to accept the recommendations. In the instant case upon consideration of the recommendation the State Government took the decision for nationalization as also the effective date for take over of the school as per the letter dated 01.12.1980 (Annexure-10) which is not under challenge. It is not in dispute between the parties that the deceased employee retired on 31st August, 1980. On perusal of the letter dated 01.12.1980 (Annexure-10) read with the Annexure-11 whereby the assets of the school was handed over to the concerned authority of the State Government on 22.12.1980. The deceased employee having already retired on 31.08.1980 and as such was not a Government servant on the date of his retirement. The submissions advanced on behalf of the State are well founded that under sub section (2) & (4) of - 7 - Section 3 the District Committee is only the recommending body. The recommendations can either be approved or disapproved. One can not compel the authorities to accept all the recommendations. The final decision rests with the State Government. The provision of sub-sections 2 & 4 of section 3 which have been referred by the petitioner fell for consideration by the Apex Court as well as by this Court. The extract of the aforesaid provisions are quoted below : Sub-section(2) “Aided Elementary Schools, the Managing Committees of which have handed over voluntarily the control of the school to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) for this purpose.” Sub-section (4) “(a) With regard to the taking over of Elementary Schools other than those mentioned in sub- sections (1) & (3) there shall be a District Committee in each District which shall examined the feasibility of taking over of such schools by the State Government and which shall consist of the following members : (i) Deputy Development Commissioner/ Administrator, District- Board- Chairman (ii) District Superintendent of Education-Secretary Members - 8 - (iii) District Education Officer (iv) District Inspector of Schools (v) Subdivisional Education officer of the concerned subdivision, and (vi) Deputy Inspector of schools concerned (b) The State Government may, from time to time make changes in the personnel of the District Committees so constituted.” It will also be useful to quote para 8 of the decision of Apex Court in the case of State of Bihar Vs. Ramdeo Yadav & Ors (Supra) in which the aforesaid provisions fell for consideration : Paragraph-8 Under section 3(2) read with section 3(4), the operation of taking over all the aided elementary schools by the private management committees and handed over voluntarily to the control of the Government would be operative only on the recommendation made by the Committee constituted under Sub-section (4) of section 3. Consequently, only on acceptance of recommendation by the Government, taking over of the school becomes complete and it becomes operative. It would be clear from the language that it is not incumbent upon the Government to either take over the school until it decided to do so, and Government is not bound to accept all the recommendations.” This Court also in paragraph 8 of the full Bench decision in the case of Sidheshwar Prasad & Ors. Vs. State of Bihar & - 9 - Ors. (Supra) took the similar view, which is quoted below : Paragraph-8 “A conjoint reading of sub-sections 2 & 4 of section 3 makes it clear that the aim and object, as indeed the only function, of the District Committee is to examine the feasibility of the take over and determine the effective date of takeover. After the District Committee submits its report, it is for the State Govt. to take the final decision”. In the instant case the State Government considered the recommendations and thereupon took the final decision with respect to taking over/nationalization of the school in question vide Annexure-10 issued on 01.12.1980 (Annexure-8). The school was taken over with effect from the date the assets of the School were handed over by the Managing Committee i.e. 22.12.1980. The deceased employee had admittedly had retired prior to the aforesaid date. In other words the deceased employee was not a Government servant as on the date of taking over of the school in question, therefore, was not entitled to claim for payment of the retiral dues from the State Government and rightly did not claim during long span after his retirement till the date of death. Consequently the petitioners are equally not entitled to claim for payment of the retiral dues as also the payment of family pension in favour of petitioner no.1 and no Mandamus/direction can - 10 - be issued for the relief prayed for. In the result, the writ application being devoid of any merit is accordingly dismissed. No costs. The Patna High Court The 16th of July, 2010 A.F.R./ Manish ( Shailesh Kumar Sinha,J.)