IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.9981 OF 2007 ===================================================== NAWAL KISHORE PRASAD SINGH, S/O LATE BISHAWAR SINGH, R/O VILLAGE JAPHARA, P.S NARDIGANJ, DISTRICT NAWADA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 4.THE DEPUTY DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 5.THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, MAGADH DIVISION, GAYA. 6.THE DISTRICT SUPERINTENDENT OF EDUCATION, GAYA. 7.THE SUB-DIVISIONAL OFFICER, SADAR GAYA, GAYA. 8.THE BLOCK EDUCATION EXTENSION OFFICER, AAMAS, GAYA. 9.THE BLOCK EDUCATION EXTENSION OFFICER, BAJEERGANJ, GAYA. ………………………RESPONDENTS. ======================================================= Appearance : For the Petitioner:MR. RAJENDRA PRASAD SINGH, MR. RAJEEV KUMAR SINGH, & Mr. Jay Shankar For the Respondents:Mr. (GP9) ======================================================== P R E S E N T HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORDER (01-12-2011) Mihir Kumar Jha, J. Having heard Mr. Rajendra Prasad Singh, learned senior counsel for the petitioner and the learned counsel for the State as with regard to the solitary prayer of the petitioner for payment of arrears of salary since, 01.01.1983, this Court would find it difficult to issue a direction to the respondents specially when a specific stand has been taken by them in their counter affidavit that the School of the petitioner was never taken over as a Government School and thus the Government had/has no Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 2/13 commitment or liability for making payment of salary to the petitioner. Mr. Singh, however, has submitted that the School of the petitioner namely, Madhya Vidyalaya, Kakariya, Pater (Wazirganj) in the district of Nawada (hereinafter referred to as the School) was actually taken over in view of the order of the District Education Officer dated 07.01.1975 on the basis of an earlier decision taken by the team of officials of the Education Department in the meeting held on 09.12.1974 as per the direction given by the Director Primary Education in his letter dated 09.07.1973 and 10.12.1974. In this regard, he has placed reliance on the portion of the proceeding of the meeting of the Committee of the officials reading as follows:- 8- e/; fon~;ky; irsM+&ddfM+;k ¼othjxat½ bl fon~;ky; esa inLFkkfir ds vUnj dksbZ e/; fon~;ky; ugha gS A vr% bldk jk’Vªh;dj.k bl “krZ ij fd;k tkrk gS fd Jh txr fd”kksj flag vkbZ0,0 izf”kf{kr ,oa Jh jktdqekj flag] eSfVªd izf”kf{kr tks 1-7-72 ls fu;qDr gSa dks eSfVªd izf”kf{kr ds osrueku esa izLohd`fr fd;k tkrk gSA ;gk¡ ds dqy pkj f”k{kdksa dh izLohd`fr nh tkrh gSA** It is however very difficult for this court to accept the said submission of the learned counsel for the petitioner, inasmuch as, the petitioner in the writ application in paragraph no. 3 has claimed to be the employee of Motilal Nehru Middle School, Pater, Wazirganj in the district of Gaya. Thus the alleged decision taken with regard to Madhya Vidyalaya, Kakariya, Pater (Wazirganj) in the district of Nawada cannot be accepted as a decision for the School of the petitioner and at least on that basis it cannot be held Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 3/13 that the School of the petitioner was taken over by the State Government in terms of Section-3 and 4 of the Bihar Non government Elementary schools (Taking Over of Control) Act, 1976 (hereinafter referred to as the Act). As a matter of fact, from the perusal of the entire proceedings of the meeting of the officials of the Education Department dated 09.12.1974 as contained in Annexure-4, it would be also clear that only some spade work was being made for taking over a decision for take over of Primary and Middle Schools, inasmuch as, in clause no.5 of the said proceedings it was specifically mentioned that the date of nationalization (take over) would be such date on which the School without imposing any condition shall voluntarily hand over its all movable and immovable assets in the name of the Governor of Bihar by executing a registered document. Admittedly, the petitioner has not claimed execution of such a registered document at any point of time by the private management of the School in terms of the aforementioned decision of the Committee of the officials as contained in Annexure-4. In that view of the matter also a claim of the petitioner on his School being taken over in terms of Annexure-4, the decision of the committee of the officials dated 09.12.1974 as circulated by the District Education Officer in his Memo No. 90-139 dated 07.01.1975 cannot be accepted. That apart, from the reading of the entire writ Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 4/13 application and its connected enclosed documents including the representations filed by the petitioner, it would also become clear that the basis for the petitioner to claim his payment of salary as a teacher of taken over School rests on an order of the District Superintendent of Education, Gaya dated 22.08.1983(Annexure-7). This decision, however, is not in respect of the School of the petitioner but in respect of Motilal Nehru Middle School, Pater, Wazirganj anchal in the district of Gaya and therefore, the same cannot be read as order of take over of the School of the petitioner. In any event neither the District Education Officer on his own nor the District Superintendent of Education was ever authorized to take over the School in terms of Section 3 and 4 of the take over Act: “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 with effect from the 1st day of January, 1971. (2) Aided Elementary schools, the Managing committee 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 mentioned in sub-sections (1) and (3) there shall be a District Committee in each District which shall Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 5/13 examine 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 (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.” From a bare reading of the aforesaid statutory provisions relating to take over of the Schools, it would be clear that Section-3(1) provides that all the elementary School managed by local authorities like District Board, Zila Parishad, Municipal Board etc. shall be deemed to have been taken over by the State Government with effect from 01.01.1971. Sub-section-2 of the said section makes the provisions for taking over of ‘aided elementary schools’ by the State. It provides that the State Government shall take over these Schools with effect from the date which shall be determined by the District Committee, provided that the Managing Committee of the School voluntarily hands over the control of the School to the Government. Sub-section (3) contemplates taking over of elementary Schools administered by public or private undertakings and the taking over of such school has been left at the complete discretion of the State Government which can be Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 6/13 effectuated by publication of a notification in the official gazette in this regard. Sub-section 4 of Section-3 of the Act provides that District Committee is authorized to examine the feasibility of taking over of such Schools which do not fall in the categories mentioned in sub-section (1) and sub section (3) of Section 3 of the Act. As noted above sub-section 1 of Section 3 deals with the elementary Schools managed by local authorities described therein and sub-section (3) provides for taking over of elementary Schools administered by public or private undertaking. In view of exclusion of elementary Schools of the categories mentioned in sub- section (1) and (3) of the Act, the District Committee can examine the feasibility of taking over of any School other than the Schools managed/administered by local authorities and public or private undertakings. Presently the claim of the petitioner is that his School was taken over in terms of sub-section 3 of Section 2 of the Act. For a School falling in the category of sub- section 3 of Section-2, it will have to fulfil the test of Section-2 (a) of the Act which defines elementary Schools of different grades up to class VII, and clauses (b), (c) and (d) of the Section further defines ‘minority elementary School’, ‘aided elementary School’ and ‘unaided elementary School’, respectively. For being an ‘aided elementary School’ it must fulfil two Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 7/13 conditions namely, (i) It is a private School which has been in receipt of Government grant and (ii) It is administered by a Managing Committee. In the backdrop of this requirement, when the pleadings in the writ application is examined it is found that there is no averment that the School of the petitioner was ever in receipt of Government grant or the School of the petitioner was an aided School. In fact, it has also not been claimed that the School of the petitioner was being administered by a Managing Committee. In that view of the matter, the so called claim of the petitioner of his School being taken over by the order of the District Superintendent of Education, Gaya in his order dated 22.08.1983 (Annexure- 7) cannot be accepted as take over of the School of the petitioner specially when the same only talks about an aided School namely of Motilal Nehru Middle School, Pater, Wazirganj in the district of Gaya. The submission of learned counsel for the petitioner that the proceedings of the meeting held on 09.12.1974 as contained in Annexure-4 should be read as the recommendation of the statutory District Committee in terms of Section 3(4) of the Act, has also to be noted for its being rejected, inasmuch as, such statutory Committee has been specified to consist Deputy Development Commissioner as its Chairman and District Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 8/13 Superintendent of Education as its Secretary apart from the District Education Officer, District Inspector of School, Sub-divisional Education Officer of the concerned sub-division, the Deputy Inspector of Schools concerned to be its members. In the proceedings of the meeting dated 01.12.1974 (Annexure-4), it is the District Education Officer, who is said to have taken a decision at any point of time when the District Committee was not even in existence. Be that as it may, when there is no evidence of the School of the petitioner ever handing over its movable and immovable assets by executing registered document in the name of the Governor of Bihar, it cannot be held that the School of the petitioner was taken over by the State Government in terms of the aforementioned decision. As a matter of fact also the petitioner does not claim such decision dated 09.12.1974 to be the basis for take over of the School, inasmuch as, his all of the representations themselves indicate that the School was taken over in the year 1983 under the order of District Superintendent of Education. There is however no such power vested in the District Superintendent of Education to take over any School in terms of Section 3 of the Act. In this regard it has been specifically asserted by the respondents in their supplementary counter affidavit and has not been controverted by the petitioner in his rejoinder affidavit. Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 9/13 The next limb of submission of Mr. Singh that Annexure-4 should be treated to be a report of the District Committee as with regard to automatic take over of the School of the petitioner, in fact, cannot be accepted by this Court in view of a Division Bench judgment 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 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 Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 10/13 (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.” Once this aspect becomes clear that merely on the basis of the report of the Committee of the officials, which is not a District Committee in terms of Section- 3(4) of the Act, it has to be necessarily held that such recommendation of the Committee of take over of the School of the petitioner with only two persons named therein, as teachers namely, Jagat Kishore Singh and Raj kumar Singh working in the School since 01.07.1972 having the qualification of I.A Trained and Matric Trained respectively was actually in respect of some other Schools, inasmuch as, the list of teachers submitted by the petitioner in Annexure-4 to the writ petition does not contain name of either Jagat Kishore Singh or Raj kumar Singh. It is therefore very difficult for this Court to believe that the decision of the Committee in respect of Madhya Vidyalaya Pater-Kakaria (Wazir Ganj) in the district of Gaya was actually a Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 11/13 recommendation of take over of the School of the petitioner, who claims to be working in Motilal Nehru Middle School, Pater, Wazirganj in the district of Gaya. Having held that the School of the petitioner was never taken over, this Court cannot allow the prayer of the petitioner confined only to payment of his salary of 28 years from 01.01.1983 for which it will have to first direct the State Government to take over the School of the petitioner. Such recourse, however, is strictly prohibited, inasmuch as, this Court cannot direct the State Government to take over any particular School as was also held by the Apex Court in the case of State of Bihar and Ors vs Chandradip Rai and Ors, reported in 1981 SC 2071 in the following words:- “3. It is evident that the school has not been taken over by the State Government. The District Committee never recommended for the taking over of control and management of the school under sub- section (2) of S.3 of the Act. There is also no notification issued by the State Government under sub-sec. (3) of S.3 of the Act. The school not having been taken over by the State Government under S.3 of the Act, the consequences set forth under sub-sec. (2) of S.4 do not ensue. That being so, the respondents nos. 2 to 6 were not entitled to the benefit of sub-sec.(2) of S.4 of the Act. The High Court was, therefore, not justified in issuing of writ of mandamus directing the State Government to take steps for the proper management of the school or for payment of salary to the respondents. Finding it difficult to support the judgment, counsel for the respondents no. 2 to 6 seeks leave to withdraw the writ petition filed in the High Court. We accord leave prayed for. There would be yet another reason for rejecting the prayer of the petitioner for payment of his salary from 01.01.1983. The petitioner claims to be the teacher Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 12/13 of a recognized Middle School who is said to have been appointed on 20.05.1969. He however had/ has never received payment of his salary for a day from the Government fund and at least nothing in this regard has been stated by him in the writ application and therefore, his first attempt before this Court to claim payment of salary with effect from 01.01.1983 by filing this writ application on 07.08.2007 must be held to be suffering from gross unexplained delay and laches of more than 24 years. As a matter of fact, if the date of birth of the petitioner as mentioned in Annexure-3 being 16.06.1951 is accepted, the petitioner by this time has already attained the age of superannuation and therefore, the payment of entire salary of the petitioner for the period of his entire service tenure in one go after his retirement would only make mockery of service jurisprudence. The petitioner infact had very conveniently remained silent for more than two decades despite the alleged decision of the take over of his school in the year 09.12.1974 and/or in the year 1983. The delay, therefore, in filing this writ application would also be fatal for maintaining this writ application. Counsel for the State in fact seems to be correct that the decision taken in the meeting dated 09.12.1974, as with regard to the take over of the School was actually not meant for the School of the petitioner and Patna High Court CWJC No.9981 of 2007 dt.01-12-2011 13/13 in fact he has rightly pointed out that if there was a decision already taken for take over way back in the year 1974, there was no need to hold another inquiry in terms of the order of the Director of Primary Education contained in letter no. 1470 dated 07.06.1980. The very fact that even till 1980 the School of the petitioner was under process of consideration for being taken over as a Government School and was being described as a proposed middle School would by itself be sufficient to indicate that Annexure-4, the proceedings relating to Madhya Vidyalaya, Pater, Kakria was in respect of some other School whose teachers were different from those whose names have been given in the list of teachers enclosed with the writ petition. Thus having given anxious consideration to all the aspects of the matter as discussed above, this Court is of the firm opinion that the claim of the petitioner for payment of his salary w.e.f 01.01.1983 on the basis of he being a teacher of taken over School is wholly untenable either on fact or in law. That being so, this writ application is, accordingly, dismissed. There would be however, no order as to costs. (Mihir Kumar Jha, J.) Patna High Court Dated the 1st December 2011 N.A.F.R./Ranjan