IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8155 of 2007 Bilash Prasad, son of late Karu Prasad Yadav, resident of Village Sikandra, P.O. Khalsha Dhibari, Dist. Nawadah, at present posted and working as an Assistant teacher in recognized non-Govt. Middle School, Sikandra, P.S. Muffasil, Dist. Nawadah (Bihar). -------- Petitioner Versus 1. The State of Bihar. 2. The Secretary to the Department of Human Resources Development Bhawan Bihar, Patna. 3. The Director (Primary Education) Human Resources Development Department, Bihar, Patna. 4. The District Superintendent of Education, Nawadah. --------- Respondents With CWJC No.8062 of 2007 Babu Lal Prasad, son of late Baldeo Mahto, resident of Village Sikandra, Pargana- Samai, P.O. Khalsha Dhibari, Via Kadirganj, P.S. Muffasil Nawadah, Dist. Nawadah (Bihar), At present posted and working as an Assistant Teacher in recognized Middle School Sikdandra, P.S. Muffasil, Dist. Nawadah. ------- Petitioner Versus 1. The State of Bihar. 2. The Secretary to the Department of Human Resources Development Bhavan Bihar, Patna. 3. The Director (Primary Education) Human Resources Development Department Bihar, Patna. 4. The District Superintendent of Education, Nawadah. ------- Respondents With CWJC No.8233 of 2007 Ramawatar Pd. Yadav, son of late Karu Prasad Yadav, resident of Village Sikandra, P.O. Khalsha Dhibari, P.S. Muaffasil Nawadah, Dist. Nawadah, at present posted and working as an Assistant Teacher in recognized Non-Government Middle School, Sikandra, P.S. Muffasil, Dist. Nawadah. ------- Petitioner Versus 1. The State of Bihar. 2. The Secretary to the Department of Human Resources Development Bhavan Bihar, Patna. 3. The Director (Primary Education) Human Resources Development Department Bihar, Patna. 4. The District Superintendent of Education, Nawadah. ------- Respondents With CWJC No.8399 of 2007 Ramashray Prasad Singh, son of late Saryug Singh, rersident of Village Samai, P.S. Mufassil, Dist. Nawadah, at present posted and 2 working as an Assistant Teacher in recognized Non. Govt. Middle School, Sikandra, P.S. Muffasil, under District Nawadah. -------- Petitioner Versus 1. The State of Bihar. 2. The Secretary to the Department of Human Resources Development Bhavan Bihar, Patna. 3. The Director (Primary Education) Human Resources Development Department Bihar, Patna. 4. The District Superintendent of Education, Nawadah. ------- Respondents With CWJC No.8658 of 2007 Manoj Kumar, son of Shri Ram Sewak Singh, resident of Village Arhma, P.S. Bajirganj, Dist. Gaya at present posted and working as an Assistant Teacher in recognized Middle School, Sikandra, P.O. Khalsha Dhibri, P.S. Muffasil Nawadah, Dist. Nawadah (Bihar). ------- Petitioner Versus 1. The State of Bihar. 2. The Secretary to the Department of Human Resources Development Bhavan Bihar, Patna. 3. The Director (Primary Education) Human Resources Development Department Bihar, Patna. 4. The District Superintendent of Education, Nawadah. ------- Respondents With CWJC No.8895 of 2007 Anil Kumar, son of Shri Bidya Bhushan Singh, resident of Village Bareb, P.S. Akberpur, Dist. Nawadah at present posted and working as an Assistant Teacher in recognized non-Government Middle School, Sikandra, P.O. Khalsha Dhibari, P.S. Muffasil, Dist. Nawadah (Bihar). ------- Petitioner Versus 1. The State of Bihar. 2. The Secretary to the Department of Human Resources Development Bhavan Bihar, Patna. 3. The Director (Primary Education) Human Resources Development Department Bihar, Patna. 4. The District Superintendent of Education, Nawadah. ------- Respondents ----------- 2 23.09.2011 In all these writ applications, the common prayer of the petitioners for payment of salary on the basis that they are working 3 in their respective primary school and middle school would depend on the factum as to whether the Government has any liability to pay salary for these schools. The schools were taken over in view of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, Section 3 whereof reads as follows:- “3. Taking over of Non-Government Elementary schools by State Government.- (1) Elementary schools managed by the District Board, Zila Parishad, the Municipal Board, and the Patna Municipal Corporation, and those opened under the Expansion and improvement scheme shall be deemed to have been taken over by the State Government with effect from the 1st day of January, 1971. (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. (3) Elementary schools administered by an public or private undertakings shall be taken over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein. (4) (a) With regard to the taking over of Elementary schools other than those 4 mentioned in sub-sections (1) and (3) there shall be a District Committee in each District which shall consist of the following members: (i) Deputy Development Commissioner/ Administrator, District Board – Chairman. (ii)District Superintendent of Education- Secretary. Members (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 would thus be clear that unless the petitioners’ school is covered under Section 3(1) of the Act, there has to be a specific order for take-over of such schools. In all these cases, there is no such order of the Government for taking-over the schools and, therefore, the reliance placed on an executive instruction dated 9.2.1973 for fastening liability for payment of salary of teachers of these schools seems to be wholly misconceived, inasmuch as, this executive 5 instruction stood superceded after promulgation of the 1976 Act. It is in this regard that one has to take note of the specific stand of the respondents that the schools, in question, were never taken-over by the State Government and that the issue has been, thereafter, decided by the authorities holding that the Government will have no liability for payment of salary to the teachers of such schools. As a matter of fact, the following stand of the respondents in their counter affidavit filed in CWJC No. 7738 of 2007 heard together with there cases and disposed of today itself by a separate order:- “6. That it is stated that claim of petitioner is that he is working Assistant teacher of Middle School, Sikandara (Nawada) which was initially managed by Management Committee. In fact petitioner is not entitled for regularization and payment of salary (previous or future) as school in question has never been taken over by State Government and services of the petitioner also has never been taken over by the State Government in view of departmental notification contained in memo no. 6 2267 dated 23.8.1993 in this regard Commissioner cum Secretary, Department of Human Resources Government of Bihar, Patna had passed an order pursuant to direction of this Hon’ble Court vide memo no. 1645 dated 25.9.2006 wherein the similar facts was involved and the Secretary has rejected the claim of similarly situated claimant dealing the entire matter in this regard. 7. That it is further stated that issue involved in instant writ petition has already been decided by the State Government vide order contained in memo no. 1645 (Annexure –A) wherein it has clearly been stated that cabinet of the State Government vide its resolution dated 30.6.1993 cancelled its earlier decision dated 16.1.1990 whereby proposal to take over 982 primary school was decided to be considered. And thus State Government has decided not to take over any school from within said 982 primary schools and therefore services of the petitioner and his school was also not taken over by State Government and hence question of making payment of arrear of salary to them also does not arise and instant writ petition is fit to be dismissed.” will leave nothing for speculation that the 7 petitioners are not entitled for payment of their salary as their school was never notified as government schools. That being so, this Court does not find any merit in these writ applications and all of them are accordingly dismissed. Rsh (Mihir Kumar Jha, J.)