IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.7163 OF 2007 BAMESHWAR SINGH, S/O BISHAMBHAR SINGH, R/O VILLAGE SAMAI, P.S. MUFFASIL, DISTRICT NAWADA, AT PRESENT POSTED AND WORKING AS AN ASSISTANT TEACHER IN MIDDLE SCHOOL, SIKENDRA UNDER DISTRICT NAWADAH. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT,GOVT. OF BIHAR, PATNA. 3.THE DISTRICT (PRIMARY EDUATION) NEW SECRETARIAT, PATNA. 4.THE DEPUTY DIRECTOR (PRIMARY EDUCATION), NEW SECRETARIAT PATNA.. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. WITH CWJC NO.6407 OF 2007 RAMAKANT PATHAK S/O SHRI SHYAM SUNDER PATHAK, RESIDENT OF VILLAGE SOMAI P.S. MUFFASIL DISTRICT-NAWADAH, AT PRESENT POSTED IN WORKING AS AN ASSISTANT TEACHER IN RECOGNIZED MIDDLE SCHOOL SIKANDRA UNDER 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 EDUATION) NEW SECRETARIAT, PATNA. 4.THE DEPUTY DIRECTOR (PRIMARY EDUCATION), NEW SECRETARIAT PATNA.. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. ………………………RESPONDENTS. WITH CWJC NO.7012 OF 2007 RENU KUMARI W/O RAJEEV NAYAN SINGH, RESIDENT OF VILLAGE SEMAI, P.S. MUFFASIL, DISTRICT NAWADAH AT PRESENT POSTED AND WORKING AS AN ASSISTANT 2 TEACHER IN RECOGNIZED MIDDLE SCHOOL SIKANDRA DISTRICT-NAWADA. …………………PETITIONER. VERSUS 1. THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, THE HUMAN RESOURCES DEVELOPMENT DEPARTMENT,GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR (PRIMARY EDUCATION) NEW SECRETARIAT, PATNA. 4.THE DEPUTY DIRECTOR (PRIMARY EDUCATION), NEW SECRETARIAT PATNA.. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. ………………………RESPONDENTS. WITH CWJC NO.7154 OF 2007 SHRI NIVASH SINGH, SON OF SHRI ANIL PRASAD SINGH, RESIDENT OF VILLAGE SAMAI, P.S. MUFFASIL, DISTRICT NAWADA, AT PRESENT AND POSTED AND WORKING AS AN ASSISTANT TEACHER IN RECOGNIZED MIDDLE SCHOOL, SIKANDRA, UNDER DISTRICT NAWADA. ………PETITIONER VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, THE HUMAN RESOURCES DEVELOPMENT DEPARTMENT,GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR(PRIMARY EDUATION) NEW SECRETARIAT, PATNA. 4.THE DEPUTY DIRECTOR (PRIMARY EDUCATION), NEW SECRETARIAT PATNA. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. ………………………RESPONDENTS. WITH CWJC NO.10124 OF 2007 RAGINI KUMARI, D/O SHUKLA SHRUTISH PRASAD SINGH, R/O VILLAGE ASTA (NALANDA), W/O SHRI ANIL SINGH, R/O VILLAGE FULMA P.S. AKBERPUR, DISTRICT NAWADAH AT PRESENT POSTED AND WORKING AS ASSISTANT TEACHER IN MIDDLE SCHOOL SIKANDRA, P.S MUFFASIL, DISTRICT NAWADAH (BIHAR). …………………PETITIONER. 3 VERSUS 1.THE STATE OF BIHAR. 2. SECRETARY TO THE DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT BHAWAN, BIHAR, PATNA. 3.THE DIRECTOR (PRIMARY EDUCATION)HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 4.THE DEPUTY DIRECTOR (PRIMARY EDUCATION), NEW SECRETARIAT PATNA.. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. ………………………RESPONDENTS. ----------- 02/ 21.09.2011 Heard Counsel for the parties In all these writ applications, the petitioners have prayed for the same relief namely for payment of their salary. Though the petitioners have not mentioned any specific period for payment of their salary in the prayer portion but from the reading of the various paragraphs of the writ application it appears that they claim salary from the date of appointment to the date of their retirement. The petitioners have also not made it clear as to the basis of such payment of salary but then they have an impression that they were teachers of the Government School or Government aided School. The confusion of the petitioners, however, as with regard to their status 4 despite filing of the counter affidavit in some of the cases had continued and therefore, in a supplementary affidavit they have come out to make a prayer that a direction should be given by this Court for take over of the Schools under the provision of Section 4 of the Bihar Non government Elementary Schools Act( taking over of control) Act 1976. Learned counsel for the petitioner have also placed reliance on a Government resolution dated 09.02.1973 to make out a case that all the petitioners will be deemed to be the employees of the Government School or Government aided Schools. In the considered opinion of this Court, the Government resolution dated 09.02.1973 was only a forerunner of the 1976 Act and once no specific order was issued in favour of the School of the petitioners either for its being taken over or even for being given grant in aid, the reliance placed in isolation on paragraph no. 3 of the aforesaid resolution reading as follows:- ^^3- tks vYila[;d] nwljs izfr"Bku ;k izcU/k lfefr;ksa }kjk lapkfyr izkjfEHkd fo|ky; cus jgsaxs] mudh ogh vuqnku fn;k tk;] tks oRrZeku jktdh; vkns'k ds vuqlkj mUgsa ns; gksrk gSA** 5 appears to be wholly misplaced, inasmuch as, there is no earlier order as with regard to the release of grant in aid for the school of the petitioners. Learned counsel for the State, in fact rightly contends that the School of the petitioners at best could be covered by the provision of Section-3(3) of 1976 Act, if there was a government notification to that effect. Section-3(3) of the 1976 Act reading as follows:- “Section-3(3) Elementary schools administered by any 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.” leaves nothing for speculation that there could not have been automotic take over of private schools unless a specific notification to this effect was issued by the State Government. Counsel for the petitioner, however, has frankly conceded stating that there was no notification in respect of takeover of the School of the petitioners published in the Official Gazette in terms of Section-3(3) of the 6 Act. In that view of the matter, the submission of learned counsel for the petitioners that the Schools of petitioners, of being a taken over School in terms of 1976 Act also must fail. As a matter of fact, the total confusion of the petitioners as with regard to their claim for payment of salary gets exposed when their counsel have placed reliance on a document contained in Annexure-25 being the order of the Director Primary Education dated 14.07.1988 as with regard to Arajakiya Madhya vidyalaya, Sherpur, Nawada. After reading of the said letter dated 14.07.1988, it becomes clear that the said School at Sherpur was taken over in terms of Section-3(4) of the 1976 Act. Section-3(4) of the Act infact covers only such schools which are guided by the provisions of Section-3(2) of the Act and to make this whole scheme of take over school clear, it would be necessary to also take note of Section-3 of the Act as a whole:- “3.Taking over of Non- Government Elementary Schools by State Government:- (1) Elementary schools 7 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 any 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 examine the feasibility of taking over of such schools by the State Government and which shall consist of the following member: (i)Deputy Development Commissioner/Administrator, District Board-Chairman. (ii)District Superintendent of Eduction-Secretary. (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 8 may, from time to time make changes in the personnel of the District Committees so constituted.” From perusal of Section-3(3) it therefore, becomes clear that Arajakiya Madhya vidyalaya, Sherpur, Nawada was actually taken over and its teachers were allowed payment of salary and there was a conscious Government decision based on the recommendation of the District Education Establishment Committee to take over such schools from the prospective date. There is however no such order in favour of the school of any of the petitioner even in terms of Section-3(4) of the 1976 Act and in fact when the learned counsel for the petitioners has himself accepted that the School of the petitioner do not fall within the ambit of Section-3(2) or Section-3(4) of the Act and that the school of the petitioner would fall under Section-3(3) of the Act, the comparison or reliance placed by the petitioner on the order of the Director of Primary Education dated 14.07.1988, contained in Annexure-25, C.W.J.C No. 6407 of 2007 even otherwise 9 must be held to be wholly misplaced. The net result of the aforementioned consideration would be that the Schools of the petitioner was never made a Government School and there was also no order for payment of salary of their teachers as an aided School and therefore, the petitioners would not be entitled for grant of payment of salary from the funds of the State Government. It is not the case of the petitioner that the Government had undertaken liability to make payment of salary of the teachers of each and every primary School. Mr. Tej Bahadur Singh, learned A.A.G appearing on behalf of the State in fact has rightly relied on the judgment of the full Bench of this Court in the case of Shri Sidheshwar Prasad & Ors. Vs. State of Bihar and others reported in 1999(3) PLJR 490, wherein, the aspects regarding the take over of the School and consequential payment of salary has been dealt in the light of the provisions of Section-3 of the 1976 Act. 10 In view of the fact that the said judgment of the full Bench in the case of Sidheshwar Prasad (supra) was rendered in the light of the judgment of the Apex Court in the case of State of Bihar and Ors vs Chandradip Rai and Ors, reported in A.I.R. 1981 SC 2071, there would be no difficulty in holding that the whole issue stands settled and covered by the aforesaid judgment of the Apex Court and the full Bench of this Court, wherein, it has been held that only teachers of such schools would be entitled for the benefit of take over for whom there has been a specific notification in terms of 1976 Act. There being however no order in the case of the schools of petitioners they cannot claim payment of their salary as a matter of right from the funds of the Government. Thus for the reasons indicated above, this Court would not find any merit in these writ applications and they are, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)