CIVIL WRIT JURISDICTION CASE No.10267 OF 1992 (Against the order dated 21.05.1992 issued by Respondent No.4 Range Education Officer,Maharajganj) Mukhtar Prasad Sinha S/o Late Brahmdeo Singh Resident of Village- Brahimpur, P. S.- Bhagwanpur, District- Siwan, Headmaster Middle School, Maghar, P.S.- Bhagwanpur, Distt.- Siwan …………Petitioner) Versus 1. The State of Bihar 2. Director of Primary Education, Government of Bihar, Patna. 3. District Superintendent of Education, Siwan. 4. Range Education Officer, Mahrajganj, Distt.- Siwan. 5. Shri Chandeshwar Mishra, Assistant Teacher, Middle School, Maghar, P.S.-Bhagwanpur, Distt.- Siwan.-----------------------------( Respondents) For The Petitioner:Mr. Harendra Kumar Singh, Adv. For the State : Mr. Shashi Bhushan Kumar S.C.-16 Mr. J.K. Roy, J.C. to S.C.-16 P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE MR. JUSTICE SUBASH CHANDRA JHA ------------------- Prasad & Jha,J.J. Petitioner, aggrieved by the order dated 21.05.1992 issued by Respondent No. 4 Area Education Officer, Maharajganj, directing the petitioner to hand over the charge of Headmaster of Aided Middle School, Maghar in the district of Siwan on completion of age of 58 years, has preferred this application with a prayer to - 2 - quash the same by issuance of an appropriate writ. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner at the relevant time was working as the Headmaster of Government Aided Middle School. By the impugned order, as contained in memo dated 21st of May, 1992 he was informed that he shall retire on 30th of January, 1992 on attaining the age of 58 years. It is the stand of the petitioner that the age of superannuation of the teachers of the nationalized school is 60 years and as such the action of the respondent in retiring him on attaining the age of 58 years is illegal. According to the petitioner, the District Committee in terms of Section 3 of the Bihar Non- Governmental Elementary School (Taking over of Control) Act, 1976, had recommended the school in question to be taken over, petitioner shall be deemed to be the Headmaster of nationalized school. Counter affidavit has been filed on behalf of Respondent No. 3, District - 3 - Superintendent of Education, in which it has been averred that petitioner was working as Headmaster in a Government Aided Middle School and the age of superannuation of the teachers working in such school at the relevant time was 58 years. According to respondent no. 3, later by Resolution dated 18.07.1994 the age of superannuation of the teachers of Government aided School has been enhanced to 60 years, who had retired on 5.9.1993 and thereafter, It has been further pointed out in the counter affidavit that the petitioner attained the age of 58 years in January, 1992 and as such he was retired on completing the said age on 31.1.1992. Mr. Harendra Kumar Singh, appearing on behalf of the petitioner submits that the petitioner shall be deemed to be working in the taken over school and once it is held so he shall retire on attaining the age of 60 years. Standing Counsel No. 16, however, appearing on behalf of the respondents submits that the very assumption of the petitioner that he was - 4 - working in a taken over school is absolutely mis-conceived. He submits that there is nothing on record to show that the school where the petitioner was working is a taken over school. In answer thereto Mr. Singh submits that the very fact that the District Committee constituted under Section 3 of the Bihar Non-Governmental Elementary School (Taking over of Control) Act, 1976, has recommended for its take over, the school in question shall be deemed to have been taken over. Hence petitioner has to be treated to be a person who retired from a taken over school. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Singh. The age of retirement of teachers of taken over school undoubtedly is 60 years but petitioner shall get benefit of the same only when it is found that he had retired from a taken over school. There is nothing on record to show that the school in question was ever taken over. Mere recommendation by the District Committee itself shall not amount - 5 - to taking over the school. In view of the authoritative pronouncement of a Full Bench of this Court in the case of Shri Sidheshwar Prasad & ors. vs The State of Bihar & ors., (FB), reported in 1999 (3) PLJR 490, this submission need not detain us much. In the said case it has been observed as follows: “In Ranath Ram vs. State of Bihar, 1995 (1) PLJR 359, a similar argument was made that the decision of the District Committee tantamounts to take-over of the school. The argument was rejected holding that District Committee is merely a recommending body and the power to examine the feasibility does not tantamount to the authority to take-over. The Court observed that in view of the words “shall be taken over by the State Government” occurring in Section 3(2) of the Act, it is difficult to hold that no further act is required to be performed by the State Government to complete the process of take-over. The absence of words “publication of notification in the official gazette” cannot be construed as abdication of power to the State Government or delegation of the power to the Committee. In Rajendra Prasad Sinha vs. State of Bihar, 1991 (1) PLJR 412, it has been held that the Act does not contain any provision for take over of the elementary schools other than those mentioned in sub-sections (1), (2) and (3) of Section 3. The power of the State Government in the matter of take-over of school is an executive power which can be - 6 - exercised by the Government alone. It is not competent for the courts including the High Court in exercise of its writ jurisdiction to direct take-over the school. The High Court can at best, in an appropriate case, merely direct the Government to re-consider the matter.” Mr. Singh then contends that the cut off date fixing 5.9.1993 for enhancing the age is arbitrary. In support of his submission he has placed reliance on a judgment of a learned Single Judge in the case of Madhav Mahaseth & Ors. Vs. State of Bihar and Ors. reported in 1998 (1) PLJR 803, and our attention has been drawn to Paragraph 10 of the judgment which reads as follows: “The case of these petitioners being similar to the case of Haryana State Adhyapak Sangh (supra), I set aside the portion of the impugned resolution dated 5.11.1993, by which it has been ordered to pay monetary benefits to the teachers and other employees of aided primary/middle schools with effect from 1.4.1993. I hold that the petitioners and other similarly situated teachers and employees of aided primary/middle schools are entitled for revised scale of pay, of which fixation is to be made with effect from 1.1.1986 and arrears of salary is to be made with effect from 1.3.1989. The respondents are, accordingly, directed to fix the salary of the - 7 - petitioners and other teaching and non-teaching employees of aided schools in the revised scale of pay, in terms with resolution dated 5.11.1993, with the arrears of salary with effect from 1.3.1989. The order is to be complied by the respondents within a period of four months from the date of receipt/production of a copy of this order with respect to these petitioners and all, similarly situated teaching and non- teaching employees of different aided primary/middle schools”. We do not find any substance in the submission of Mr. Singh and the decision relied on is clearly distinguishable. It is well settled that whenever the employer takes decision to enhance the age of superannuation it has to be from a particular date. In the present case, the State Government has chosen 5.9.1993 as the date for enhancing the age of superannuation from 58 years to 60 years. Undisputedly petitioner has attained the age of 58 years prior to that and in that view of the matter he shall not be entitled to the benefit. Decision of Madhav Mahaseth & Ors. Vs. State of Bihar & Ors., (supra), the case relied on by the petitioner pertains to the grant of monetary benefit - 8 - from a particular date to the teachers of certain category and in that background the aforesaid decision was rendered. This is not the situation here. The petitioner has superannuated from service according to the age of superannuation prevalent on the date of his retirement. He was rightly asked to hand over the charge on attaining the said age. We are of the opinion that the Area Education Officer did not commit any error while passing the impugned order. In the result, we do not find any merit in the application and, accordingly, this application is dismissed but without any order as to cost. Patna High Court, the20thof Oct., 2008 NAFR/AFR Sanjeet (Chandramauli Kr. Prasad) (Subash Chandra Jha, J.)