IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7161 of 2001 1. HARDEO PRASAD YADAV, son of Late Surya Prasad Yadav, resident of village-Rampur Noonnagar, Post Jalalpur Bazar, P. S. Jalalpur, District Saran. 2. Krishna Murari Prasad Gupta, son of late Dinanath Sah, resident of village- Brahmpur Pool, P. S.- Bhagwan Bazar, District- Saran (Chhapra). 3. Ajay Kumar Mihsra, son of late Satyanarayan Mishra, resident of village- Raghwpur,Post and P.S.- Rivilganj, District Saran (Chhapra.) 4. Braj Bihari Prasad, son of Sri Permeshwar Dayal Gupta, resident of Mohalla- Katra, Baradari, P. S. Bhagwan Bazar, District- Saran( Chapra). … Petitioners. Versus 1. THE STATE OF BIHAR 2. the Commissioner and Secretary, Primary and Adult Education Department, Bihar, Patna. 3. the Deputy Director, Primary Education, Government of Bihar, Patna. 4. The Sub-Divisional Education Officer, Chhapra, District- Saran (Chhapra) 5. The District Superintendent of Edcuation, Chhapra, District- Saran (Chhapra) 6. The Area Education Officer, Chhapra Sadar, District (Saran) (Chapra). … Respondents. ----------- 12. 05.07.2010 Heard Mr. Rajendra Prasad Singh, learned senior counsel for the petitioners and learned counsel for the State. In this writ petition, the prayer of the petitioners reads as follows:- “1. That this is an application for issuance of appropriate writ(s)/direction(s) for quashing of the order dated 20.2.2001 passed and issued by the respondent no. 2, whereby and whereunder the claim of the petitioners for their approval and regularization on the posts of Assistant Teachers in Bharti Vidya Mandir Aided School, Salempur, Chhapra have been 2 rejected and further for direction to the respondents to approve and regularize the services of the petitioners as Assistant Teachers in the aforesaid school. The petitioners further pray for issuance of direction to the respondents to pay salary admissible to the teachers of Aided School on month to month basis and further to pay arrears of salary as well as other consequential benefits to the petitioners for which they may be found entitled. And/or for any other appropriate relief9s) for which the petitioners may be found entitled in the eye of law.” Mr. Rajendra Prasad singh, learned Senior counsel for the petitioners would submit that when this Court in its order dated 21.9.1999 in the earlier writ petition filed by petitioner no. 1,CWJC No. 3503 of 1998 had remitted the matter back to the authority to consider with regard to the grievance of the petitioner, the resultant order passed by the authority, Annexure- 1 to this writ petition cannot be sustained inasmuch as the records which were relied by the petitioners were not accepted only because file in question was missing from the office of the Sub-Divisional Education 3 Officer, Chapra. He would also submit that there is an apparent error of record in the finding recorded by the authority that there was no sanctioned post in school against which the payment of salary could be made to the petitioners inasmuch as from the reading of Annexure- 2, Office Memo issued by S.D.E.O, Sadar, Chapra dated 13th April 1966 and another Memo No. 161 of 1963 dated 15.1.1976 it would be apparent that there were sanctioned posts available for the petitioners. Counsel for the State with reference to the counter affidavit and supplementary counter affidavit would submit that the order passed by the authority as contained in Annexure- 1 would not require any interference inasmuch as the liability of payment of salary to the teachers of aidded school would only extend to the extent the Government will take such onus either by a specific order or by a general order. In this context, he would refer to the documents on record for substantiating his submission that even the office memo issued by the S.D.E.O, 4 Chapra dated 13th April 1966 cannot be treated to be a commitment either with regard to creation of posts or payment of salary for the teachers of the school. He would further submit that validity of annexure- 2 in any event had come to an end because such recognition was given only w.e.f. 1st January 1966 for a period of one year and in absence of any further extension from 1st January 1967 onwards, the said order cannot be held to be sufficient for accepting the submission of creation of five posts in the school. In the opinion of this Court, the concept of payment of salary from the fund of the State can only be understood and made applicable to the school which are either government schools or such private schools which were taken over or minority school or even such aidded school about which the Government has issued a specific order. In this case, there is no order for payment of salary by the Government and indirect reference to the inter departmental communication of the respondents as referred to in the impugned order with regard to 5 payment of salary to one person can not be good enough to lead to the irresistible conclusion that there were vacant sanctioned post in the school of the petitioners and government was bound to pay salary of those alleged sanctioned posts. That apart, Annexure- 2 even if given its widest meaning would only mean that certain conditions were imposed by the Sub- Divisional Education Officer while granting temporary recognition to the school for a fixed period of one year. By that document it cannot be said that the Government had also accepted its liability to allow payment of salary of five teachers inasmuch as it does not specifically say so. Be it noted, such decision was taken in 1966 when the schools were under Chhapra Municipality and they were not taken over school of the State Government and therefore annexure- 2 by itself cannot be a proof of either the school in question of being Government aided school or the commitment of the Government for making payment of salary towards five posts of teachers in the school. 6 The next document Annexure-3 dated 15.1.1976 again is an incomplete document which talks of some letter of Sub Inspector of School dated 2.1.1976 and validity of such document and decision of SDEO, Chapra can have no binding force inasmuch as after the Bihar Non-Government Primary School Take Over, 1976 ( Bihar Act No. 30 of 1976) came into force, the Government had issued specific order with regard to taking over liability of even payment of salary of proprietary school or the aided school. It is in this context, one has to understand the import of impugned order of the authority which records of liability of payment of salary to only one post of this school against which the Headmaster of the School was drawing his salary from 1.1.1980 to 29.2.2000. Thus, that decision of payment of salary to the Headmaster by way of grant in aid to the school also cannot be an evidence of the commitment of the Government towards payment of salary of five teachers of the said school. In this background, the submission 7 of learned counsel for the State that the petitioners were not trained hand and therefore their appointment was not possible in primary schools is of little impact inasmuch as the authority has held in the impugned order that the petitioners being appointed by the Managing Committee, the liability for payment of their salary would be squarely that of the Managing Committee of such school by recording the following clear findings:- ""........ so far the other petitioners are concerned, the dispute is in respect of the claim made against a private institution having its own Managing Committee and the Department of Primary, Secondary and Adult Education do not have any direct control over the Management and the establishment of such institution. Service conditions and payment of salary is within the Control of Managing Committee and the aid by the Government is only against the sanctioned strength for meeting out the Primary requirement of the Institution in question. This, therefore, does not have 8 any bearing on this case and all such letters are the letters which do not have any legal sanctity as this concern an Institution owned and managed by a private Managing Committee. I also perused Annexure-8 & 9. These are typed copies of so called orders which cannot be relied upon particularly when SDEO, Chhapra has informed vide his letter no. 18 dated 03.04.2000 that there is no file available in his office relating to Bharti Vidya Mandir. It is also to be mentioned here that so-called Annexure- 8 & 9 have no existence in the main writ petition. After perusal of materials made available before me and the materials available on records and after hearing the parties if is apparent that the School in question till date is under the management of the Private Management and the liability of the Government to provide aid is in terms of sanctioned strength only." This Court also does not find any error in the aforesaid consideration of the authority and thus for the reasons indicated 9 above it has to be held that there is absolutely no merit in this writ application and the same is, accordingly dismissed. kanchan (Mihir Kumar Jha, J.)