LETTERS PATENT APPEAL No.1271 OF 2004 ***** Against the part of the order dated 30.04.1999 passed by a learned Single Judge in C.W.J.C. No. 3076 of 1988. ****** ANARKALI DEVI wife of Late Ramjee Prasad Yadav, Resident of Bhagwan Bazar Chowk, Sheosah Kigali Police Station Bhagwan Bazar, District Saran (Chapra) ….Petitioner- Appellant. Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Bihar, Patna 3 District Superintendent of Education, Chapra …Respondents--Respondents 4. Om Prakash Yadav 5. Jay Prakash Yadav 6. Shyam Prakash Yadav 7. Uday Prakash Yadav @ Udya Prakash Yadav (4-7) are all sons of Late Ramjee Prasad Yadav Resident of Bhagwan Bazar P.S. Bhagwan Bazar District-Chapra. Petitioners- Respondents 2nd set ****** For the Appellant: Mr. Amit Prakash, Advocate For the S t a t e : Mr. Bibhakar Tiwary, A.C. to G.P.-19. ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ****** S.K. Katriar, J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the petitioner of C.W.J.C. No.3076 of 1988 (Anarkali Devi and others Vs. The State of Bihar and others), which was substantially allowed by a learned Single Judge of this Court, by judgment dated 30.4.1999, and the authorities were directed to make payment of salary to the present appellant, being the widow of late employee, from 18.8.1984 till his death. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. It arises under very interesting 2 circumstances. Ramjee Pd. Yadav, the husband of the present appellant, was earlier working as an Assistant Teacher in Masoomganj Middle School, Chapra. The Bihar Legislature had brought on the statute book, the Bihar Non-Government Elementary School (taking over of Control) Act 1976 (hereinafter referred to as the „Act‟), which empowered the State Government to take over elementary schools in private hands. Detailed provisions for take over of such schools, as well as the services of the employees, have been made therein. The managing Committee of the Gandhi Middle School, Daulatganj, Chapra, which the employees had joined later on, resolved on 20.4.1977 to hand over control and assets of the school to the State Government in terms of section 3(2) of the Act . Inspite of resolution of the Managing Committee, management of the school was not taken over by the State Government leading to C.W.J.C. No. 703 of 1983. The same was allowed by this Court by order dated 25.7.1983. After some hiccups, and a contempt proceeding in this Court, Gandhi Middle School, as well as the services of its teaching and non-teaching staff as on 20.4.1977, were taken over. 2.1) As stated hereinabove, the employee was earlier working in a different school, namely, Masoomganj Middle School. The School in question is Gandhi Middle School. In view of an advertisement published by the private management, the employee was appointed as Headmaster of the Gandhi Middle School, which was approved by the 3 District Superintendent of Education on 18.8.1984. This was followed by notification dated 4.5.1987, taking over the Gandhi Middle School along with its teaching and non-teaching staff with effect from 20.4.1977. The employee died on 15.12.1998. 2.2) It appears that the employee was not paid his salary leading to C.W.J.C. No. 2852 of 1987 (Ramjee Pd. Yadav Vs State of Bihar and others), which was dismissed by order dated 16.7.1987, and is reproduced hereinbelow: “3/16.7.1987 Heard. We are not inclined to interfere at this stage particularly when the representation of the petitioner is pending before the authority. A copy of the representation is Annexure-8. We hope that the representation will be disposed of within two months positively. The application is dismissed.” Sd/ - S.S. Hasan Sd/- B.N. Sinha. The employee pursued his representation which was rejected by order dated 7.4.1988 (Annexure-9 to the writ proceeding), passed by the Director, Primary Education-cum- Additional Secretary. The relevant portion of the order is reproduced hereinbelow: “bl izdkj ;g Li"V gks tkrk gS fd Jh ;kno dh lsok fon~;ky; ds jktdh;dj.k djus dh frfFk ;kuh 1977 ls vf/kxzfgr fdlh Hkh gkyr esa ugh fd;k tk ldrk Fkk pwfd mudh lsok 1977 dh ckr dkSu dgs 1984 ds ckn gh 'kq# gqbZ gSA lgk;rk izkIr fon~;ky;ksa dh izca/kdkjhf.k lfefr ds n~okjk 4 budh fu;qfDr fcYdwy voS/k moa foHkkxh; fu;eksa ds mYya?ku esa fd;k x;k gS D;ksafd Jh ;kno dk uke ftyk ds Lohd`r izrh{kd lwph esa ugha Fkk ,Slh ifjfLFkfr esa Jh ;kno dk uke ftyk ds Lohd`r izrh{kd lwph esa ugh Fkk ,Slh ifjfLFkfr esa Jh ;kno dh lsok dh ekU;rk nsus dk dksbZ vkSfpR; ugh gSA mij of.kZr ifjfLFkfr esa Jh jketh izlkn ;kno ds vH;kosnu dks vLohd`r fd;k tkrk gSA” 2.3) The employee preferred the present C.W.J.C. No. 3076 of 1988, praying therein for payment of his salary. He died during the pendency of the writ proceeding, and was substituted by his heir, the widow, who is the present appellant. The same was allowed by the impugned judgment whereby the State Govt. has been directed to make payment of his salary as Headmaster of Gandhi Middle School for the period 04.05.1987 till 15.12.1998. 2.4) In due compliance of the impugned judgment dated 30.4.1999, the salary, as directed, has been paid to the heirs and legal representatives. However, they have been denied the post-retirement benefits, leading to C.W.J.C. No. 16462 of 2001, which was disposed of by a learned Single Judge by order dated 05.04.2002, wherein it has been observed that in view of the observations made in the impugned judgment to the effect that the services of the employees were never taken over, it was not possible in that proceeding to grant any relief to the widow. However, she was given liberty to take appropriate 5 proceeding in so far as such observations in the impugned judgment are concerned. 2.5) Encouraged by the liberty given to the widow of the late employee, she has preferred the present appeal, praying that the following observation made in paragraph 14 of the judgment dated 30.4.1999 may be expunged, inter alia, for the reasons that the same is obiter dicta, was not required for disposal of the writ petition, and is coming in her way of getting post-retirement benefits : “Mr. Samrendra Pd. Singh submitted that as Ramjee Prasad Yadav died in harness, the substituted petitioners may lay claim for appointment of one of them on compassionate ground. The apprehension, according to me, is unwarranted. By the order passed above, salary only is to be paid because the deceased petitioner worked on the post on the basis of approval order of the D.S.E. dated 18.08.1984. But by virtue of the said order he did not become a Government employee. The position would have been different, if his services had been approved under the take over Act of 1976. Approval by D.S.E. does not amount to take over and making him a Government employee.” 3. Learned counsel for the appellant submits that the only issue raised in C.W.J.C. No. 3076 of 1988 was for payment of salary to the late employee for the period in question and, therefore, the observation made in paragraph 14 of the judgment touching the question of status of the employee after take over the school was not necessary and may be expunged. He next submits that in view of the notification dated 04.05.1987, the services of the school teachers including the late 6 employee be deemed to have been taken over by the State Government with effect from 24.04.1977. 4. Learned Government Counsel has opposed this appeal. He submits that C.W.J.C. No. 3076 of 1988 was confined to the relief of payment of salary. He next submits that the observations made in Paragraph 14 of the judgment are not obiter dicta and had become essential in view of submissions of learned counsel for the parties. He next submits that the order dated 07.04.1988, of the Director of Education, clearly stated that the employee was not on the rolls of the Gandhi Middle School on 20.04.1977. Therefore, there was no question of taking over of his service. 5. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The admitted position is that the employee had joined Gandhi Middle School as a Headmaster on 18.08.1984. The State Govt. had issued the requisite notification on 04.05.1987, taking over Gandhi Middle School with effect from 20.04.1977, along with the services of its teaching and non-teaching employees as on 20.04.1977. This had to be read with the observation made by the Director in his order dated 07.04.1988, which has been reproduced herein above in paragraph-2.2. The net result is that the services of the late employee were never taken over by the State Govt., not having been on the rolls of the Gandhi Middle School on 20.04.1977. In view of the order dated 16.07.1987, passed in 7 C.W.J.C. No. 2852 of 1987, the petitioner‟s representation was considered by the Director of Education, and was rejected by order dated 07.04.1988, whereby the petitioner‟s claim for salary as well as services being taken over by the State Govt. was rejected in unequivocal terms. Aggrieved by the order, the employee preferred C.W.J.C. No. 3076 of 1988. It is clear from a perusal of the writ petition that he confined the relief to payment of salary, and no grievance was raised with respect to that part of the order of the Director of Education whereby the claim for taking over of the services of the petitioner was rejected. The writ petitioner cannot, therefore, raise the issue relating to taking over of his services by the State Govt. We shall not permit him to travel beyond the frame of the writ petition. 6. As has been rightly submitted by the learned Government Counsel, the question of take over of the services of the late employee has to be subjected to the scrutiny of a committee contemplated by the Act. The reasons why the services of the employee were not taken over are clearly spelled out by the Director of Education in his order which part remains unchallenged. It is thus evident that the issues relating to taking over of the services of the employee attained finality with the order of the Director of Education, not having been challenged in C.W.J.C. No. 3076 of 1988. It must be further observed that the impugned judgment noticed a number of circumstances 8 adverse to the late employee, for example, suppression of material facts, non-taking over of the services of the late employee etc. In spite of this position, the learned writ court granted the benefit of salary to the widow and other substituted heirs mainly on compassionate ground, and for the reasons assigned therein. 7. In the result, we do not find any merit in this appeal. This Court has been sufficiently indulgent to the appellant by giving liberty in its earlier order dated 05.04.2002, passed in C.W.J.C. No. 16462 of 2001. Furthermore, the present appeal was late by more than 5 years, notwithstanding which the delay has been condoned, and she has been heard at length. We regret our inability to accede to the submissions. It is accordingly dismissed. We do not order for costs. (S K Katriar, J.) Birendra Prasad Verma, J. (Birendra Prasad Verma, J.) Patna High Court, Patna. Dated the 26th day of October, 2010. Anjani/Rahman/ (NAFR)