IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15535 of 2007 Madan Prasad, son of Shri Chotelal Ram, resident of village Maghra, P.S. Deepnagar, and District Nalanda at present posted and working as a peon in recognized non Government Middle School, Sikandra, P.O. Khalsha Dhibari, P.S. Mufassil, District Nawadah … 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, New Secretariat, Bihar, Patna 4. The District Superintendent of Education, Nawadah … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.15758 of 2007 Rajendra Prasad Yadav, Sri Chandrika Yadav, resident of village Nanhubibha, P.S. Atri, District Gaya … Petitioner Versus 1. The State Of Bihar 2. The Director, Primary Education, Department of Human Resources, Govt. of Bihar, Vikash Bhawan, Patna 3. The District Magistrate, Gaya 4. The Regional Deputy Director of Education, Gaya 5. The District Superintendent of Education, Gaya 6. The Secretary, Managing Committee, Madhya Vidyalaya, Nanhu Bigha, P.S. Atri, District Gaya … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.15773 of 2007 Arvind Kumar, son of Sri Sita Ram Singh, resident of village Sahwazpur Sarai, P.S. Sitamarahi, District Nawada … Petitioner Versus 1. The State Of Bihar 2. The Director, Primary Education, Department of Human Resources, Govt. of Bihar, Vikash Bhawan, Patna 3. The District Magistrate, Gaya 4. The Regional Deputy Director of Education, Gaya 5. The District Superintendent of Education, Gaya 6. The Secretary, Managing Committee, Madhya Vidyalaya, Nanhu Bigha, P.S. Atri, District Gaya … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.15777 of 2007 Yogendra Prasad, Sri Sita Ram Singh, resident of village Sawazpur Sarai, P.S. Sitamamrahi, District Gaya … Petitioner Versus 1. The State Of Bihar 2 2. The Director, Primary Education, Department of Human Resources, Govt. of Bihar, Vikash Bhawan, Patna 3. The District Magistrate, Gaya 4. The Regional Deputy Director of Education, Gaya 5. The District Superintendent of Education, Gaya 6. The Secretary, Managing Committee, Madhya Vidyalaya, Nanhu Bigha, P.S. Atri, District Gaya … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.15812 of 2007 Jai Ram Prasad Singh, son of Sri Ramadhin Prasad Singh, resident of village Padaria, P.S. Nardiganj, District Nawada … Petitioner Versus 1. The State Of Bihar 2. The Director, Primary Education, Department of Human Resources, Govt. of Bihar, Vikash Bhawan, Patna 3. The District Magistrate, Gaya 4. The Regional Deputy Director of Education, Gaya 5. The District Superintendent of Education, Gaya 6. The Secretary, Managing Committee, Madhya Vidyalaya, Nanhu Bigha, P.S. Atri, District Gaya … Respondents ---------------------------------- 2. 2.12.2011 The prayer made in all these three writ applications seeking a direction for payment of salary and allowance to the petitioners is based on a presumption that their school, namely, Non Government Middle School, Sikandra, under Nawada District is a taken over school in terms of Bihar Non-Government Elementary School (Taking Over of Control) Act, 1976. Counsel for the petitioners has also emphasized on the aspect that the Committee in terms of Section 4(4) of the aforesaid Take Over Act in fact has also recommended for take over of the aforesaid school of the petitioners and therefore, the petitioners would be entitled for payment of their salary and emoluments ever since they were appointed as teachers of the school. In the considered opinion of this Court a mere 3 recommendation of the Committee cannot be enough to hold that the school was taken over, inasmuch as the mandate of Section 3(3) is quite clear that the State Government has to issue notification in the official Gazette as with regard to taking over of the school. Admittedly such an Act has not been completed and therefore, the mere recommendation of the District Committee cannot be made the basis for issue a direction for take over of the school of the petitioners and consequential payment of salary. This aspect of the matter was considered by a Division Bench of this Court in the case of Ramnath Ram & ors. vs. the State of Bihar & Ors., reported in 1995(1) PLJR 359, wherein, it was held as follows:- “7. … … … A conjoint reading of sub-section (2) and sub- section (4) of section 3 makes it clear, in my view, that the aim and object as indeed the only function of the District Committee is to examine the feasibility of take over and determine the effective date of take over. The District Committee is like a recommending body. Examination of feasibility cannot tantamount to authority to take over. In view of the words “shall be taken over by the State Government with effect from the date which shall be determined by the District Committee occurring in sub-section (2) it is difficult to hold that no other act is required to be done on the part of the State Government to complete the process of take over. The District Committee can only fix the effective date of take over, of course, in cases where after examination of the feasibility it comes to a favourable conclusion. In the absence of any specific provision to that effect the provisions cannot be read as delegating the authority to take over or nationalize an institution to the Committee which authority otherwise vests in the State. Absence of words “publication of notification in the official gazette” cannot be construed as abdication of power of the State or delegation of power to the Committee. It is significant to notice that in the case of Chandradip Rai (supra) the Apex Court was considering the case of a school covered by sub-section (2). The claim for payment of salary was rejected on the finding that “the school not having been taken over by the State Government under S.3 of the Act, the consequence set forth under sub-sec.(2) of S.4 do not ensue”. In the instant case, no notification of take over of the school has been brought on record. As noticed above, the basis of claim is the letter of the Regional Deputy Director dated 4 February 19, 1977. 8. The above discussion has been made on the premise that the school is an aided school. It may, however, be stated here that no statement to the effect that the school is an aided school has been made in the writ petition. In that view, the contention in regard to deemed take over by reason of the report of the Committee is fit to be rejected on this ground alone. It would not be out of place to mention here that in the case of Sri Rajendra Pd. Sinha v. The State of bihar (1991(1) PLJR 412) this Court has held that merely because teachers are paid salary from the fund of the State does not tantamount to receiving Government grant by the school inasmuch as the legal identity of the school is different from that of the teachers working therein. 9. Counsel alternatively submitted that if the said letter of the Regional Deputy Director is not held to be sufficient compliance of requirement, direction may be issued to the respondents to consider the claim for take over with effect from April 19, 1990. Letter of the Government compiled in a booklet was shown to me. The said letter relates to Project Girls Schools which form different class and, therefore, is not relevant for the purpose of this case. In Rajendra Prasad Sinha (supra) it has been held that the Act does not contain any provision in regard to take over of schools other than those mentioned in sub-sections (1), (2) and (3) of section 3. Further, in Chandradip Rai (supra) the Supreme Court has ruled that the High Court in writ jurisdiction cannot issue mandamus for take over of the school.” Thus, in view of the aforementioned judgment of the Apex Court in the case of Ram Nath Ram & ors. (supra) this Court would find that no substantial relief can be given to the petitioners, inasmuch as the position remains the same as with regard to decision of the State Government for take over of the school. Learned counsel for the petitioners has, however, tried to distinguish the situation by taking a plea that the management of the school has handed over its assets and properties to the State Government by a registered document. In the considered opinion of this Court even this voluntary action on the part of the management of the school of the petitioners would vest no right in the petitioners to claim 5 salary from the State Government unless the State Government issues a notification for take over of the school in terms of Section 3(3) of the Act. That being so, all these writ applications are wholly misconceived and are dismissed. (Mihir Kumar Jha,J.) Surendra/