IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16023 of 2005 SMT.INDU KUMARI, D/o Sri Yogendra Singh, resident of village Rampur Ismail, P.O. Bahpura, P.S. Bihta, District Patna, working as teacher in Govt. Aided Non-Govt. Gardanibagh National Madhya Vidyalaya, Babu Bazar, Dhakanpura, Gardanibagh, Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Education, Govt. of Bihar, New Secretariat, Patna 3. Director, Department of Education, Govt. of Bihar, New Secretariat, Patna 4. District Superintendent of Education, Patna … Respondents with CWJC No.16054 of 2005 MUKESH KUMAR, son of late Chaturgun Prasad, resident of village Nargada, P.O. Jamsaut, via Danapur Cantt, P.S. Shahpur, District Patna, working as teacher in Govt. Aided Non-Govt. Gardanibagh National Madhya Vidyalaya Babu Bazar, Dhakanpura, Gardanibagh, Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Education, Govt. of Bihar, New Secretariat, Patna 3. Director, Department of Education, Govt. of Bihar, New Secretariat, Patna 4. District Superintendent of Education, Patna … Respondents ------- For the petitioners: Mr. Arun Kr. Tiwari, Adv. For the State : Mr. Kumar Vikram, A.C. to S.C.X ------- P R E S E N T THE HON‟BLE MR. JUSTICE MIHIR KUMAR JHA (O R D E R) 21.6.2011 Mihir Kumar Jha,J., Heard learned counsel for the petitioners and the counsel for the State. Initially when these writ applications were filed the petitioners had 2 claimed the following relief: “That this writ application is for issuance of appropriate writ/s, commanding upon the respondents to make payments of salary and other allowances (inclusive of cost of living allowances) which are legally payable to the writ petitioner who is the teacher in the Govt. Aided Non Govt. Gardanibagh National Madhya Vidyalaya, Babu Bazar, Dhakanpura, Gardanibagh, Patna. Although several directions have been issued by Govt. by issuing notifications, letters and directions and even by taking cabinet decisions and enacting laws in this regard but the respondents have flouted with impunity those decisions of the Govt. in perverse exercise of Executive powers which does not stand the test of reasonableness and fair play and smacks of their endavour for making illegal gains which is apparent from Annexure 8 and have been evading payments of salary and other allowances (inclusive of cost of living allowances) to the writ petitioner and other teachers of Gardanibagh National Madhaya Vidyalaya, Babu Bazar, Dhakanpura, Gardanibagh, Patna on the pretext of non- 3 availability of funds although sufficient fund has been allotted and made available even in the year 2003-04 (Annexure 15).” When these cases were heard on the earlier occasion this Court had directed the Director, Primary Education to file a categorical affidavit as with regard to the aforementioned prayer of the petitioners. Pursuant thereto the Director, Primary Education has filed a counter affidavit wherein it has been explained that the school of the petitioners was not taken over in terms of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 and as such, the petitioners would not be entitled for payment claimed in these writ applications. In that context it would be relevant to note the stand of the respondent Director, Primary Education, who has explained the whole matter in a very compact and cogent manner. The same reads as follows: “3. That the writ application under reply has been filed for directing the respondents to make payment of salary and other allowances (inclusive of cost of living 4 allowance). 4. That in the present context it is most humbly submitted that as per the existing provision circulated vide resolution no. 841 dated 27.3.1981 aid amount is admissible to teaching and non teaching employees of only two categories of schools. As per the aforesaid provision dated 27.3.1981 the aforesaid two categories of schools are: i) Teaching and non teaching staffs of such schools which has duly been recognized up to 31.3.1968 and were declared as minority school by the department. ii) And teaching and non teaching employee working in aided schools which has duly been recognized upto 31.3.1968 and who had been working against sanctioned post and appointment approved by the competent authority and accordingly had been receiving difference of pay and dearness allowance from the government exchequer. 5. That it is humbly submitted that under the provision of 1976 Act as well as the rule enacted therein, apart from the aforesaid two categories of non-government school there is no other provision for payment of any allowance to employees of any other category of 5 schools. 6. That the petitioners school does not come within the purview of resolution dated 27.3.1981. 7. That in this regard it would be pertinent to mention that is stand decided by the State Government not to take over/ nationalize any primary/ Middle School any further. The said decision of the State Govt. stands notified by the Secretary, Human Resources Development Deptt. vide Memo No. 2267 dated 23.8.1993. It will also be relevant to mention here that the decision taken earlier by the State Govt. to take over 982 primary schools had been subsequently cancelled. 8. That the aforesaid decision of the State Govt. not to take over any primary/ Middle school further and also that no any matter for taking over any school is presently pending consideration before the Government had duly been published in the newspaper by Director, Primary Education, Bihar, Patna in the year 1999, 2001 and 2003. 9. That it is humbly submitted that earlier also with similar prayer 176 persons had moved before this Hon‟ble Court in C.W.J.C.No. 5278/04 (Ravi Shankar vs. the State of Bihar) and 175 analogous cases 6 and by order dated 26.2.2007 the matter was remanded, directing the state authorities to constitute 3 men committee, who will scrutinize, screen and examine the individual claim. In pursuance of the Hon‟ble Court‟s order dated 26.2.2007, a committee was constituted, who after examining these cases, had passed order denying the claim of the petitioners.” Once the respondents had taken a categorical stand that the school of the petitioners was not taken over school under the aforementioned Act, the matter could have been allowed to rest, inasmuch as it is not the liability of the State Government to pay salary, emolument including cost of living allowance to each and every teacher of any private school. The Government‟s liability is only for payment of salary to the teaching and non-teaching employees of a Govt. School or such other schools which would form cluster of aided school. Admittedly the school of the petitioner was also not an aided school at any point of time and it was merely a recognized school. In fact the averments made in the supplementary counter affidavit, as noted 7 above, have also not been controverted by the petitioners by filing any rejoinder affidavit despite indulgence given by this Court in the order dated 20.5.2011. Once, therefore, the facts as asserted by the respondents in their counter affidavit remain uncontroverted the logical conclusion would be that the petitioner would not be entitled for payment of salary, emolument etc. and the writ application with his original prayer becomes fit to be dismissed. Learned counsel for the petitioners, however, has filed today an interlocutory application, wherein a prayer has been made to amend the prayer in the main writ application. Such prayer in the interlocutory application reads as follows: “That this interlocutory application is being filed to amend the prayer in the main writ petition to publish effective date of take-over in the official gazette in the light of resolution no. 763 dated 9.2.1973 and other formalities as contained in the Bihar Non-Govt. Elementary Schools (Taking over of Control) Act, 1976 declaring the Gardanibagh National Madhya Vidyalaya Patna to be a 8 Government school and its teachers and staff to be the Government employees since that date.” In support of the aforementioned prayer learned counsel for the petitioners had heavily relied on the recommendation made by the District Superintendent of Education contained in his letter dated 30.7.1991 (Annexure 28). He has also invited attention of this Court towards an inspection report dated 27.2.1985 showing school to be functional and eligible in all respect for being taken over under 1976 Act. Counsel for the petitioners has also developed a submission with regard to discrimination by placing reliance on Annexure 19 to the interlocutory application which was with regard to take over of Nilkanth Balika Madhya Vidyalaya, Chainpur, Saharsa. The said document in form of a Government notification dated 16.3.1983 has been referred to by the learned counsel for the petitioners only for the purpose that even when the said school did not fulfil the terms and conditions of take over and there was no recommendation of the Committee constituted by the State Government, yet the 9 State Government had taken over the school only on the basis of the recommendation of the Deputy Development Commissioner, Saharsa. Finally, learned counsel for the petitioners in support of the prayer made in the interlocutory application has submitted that non-consideration of the case of the petitioners for take-over by the State Government despite recommendation by the statutory Committee under the Act would amount to continuing wrong, inasmuch as when the same matter was raised by a colleague of the petitioner, namely, Manish Kumar, before the State Government no final decision had been taken even in his respect though he also is a teacher of the same school. In the considered opinion of this Court such approach of the petitioners to seek the additional relief by seeking a declaration for take-over of the school in terms of 1976 Act has to be deprecated. Normally the relief now being sought in this interlocutory application being not in aid of the main relief this Court in all fairness ought to have dismissed the prayer 10 made in the interlocutory application. Considering, however, the fact that the petitioners claim to be working in this school for the last 26 years and 20 years respectively (their date of appointment being 1.4.1985 and 1.4.1991), it would be necessary to take into account even those statements made in support of additional prayer made in the interlocutory application. The submission as to the binding effect of recommendation of the Committee constituted under section 3(4) of the Act has been noted by this Court only for its being rejected, inasmuch as it is not within the power of the Committee to take-over the non-governmental elementary school. Section 3 in fact vests such power only in the State Government as would be apparent from the following provision of section 3 of the Act: “3. Taking over of Non-Government Elementary Schools by the 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 scheme 11 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 members: (i) Deputy Development Commissioner/ Administrator, District Board- Chairman, (ii) District Superintendent of 12 Education- Society, (iii) District Education Officer, (iv) District Inspector of Schools, (v) Sub-divisional Education Officer of the concerned sub- division, 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.” Interpreting the scope of section 3 the Apex Court in the case of State of Bihar & ors. vs. Sri Chandradip Rai & ors., reported in AIR 1981 S.C. 2071, had held as follows: “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 13 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.” The said judgment was again referred to and relied by this Court in the case of Sri Rajendra Prasad Sinha & ors. vs. the State of Bihar & ors., reported in 1991(1) PLJR 412, wherein it was held as follows: “9. In view of exclusion of Elementary Schools of the categories mentioned in sub- sections (1) and (3) from the operation of sub-section (4) of section 3 of the Act, the District Committee can examine the feasibility of taking over of any school other than the schools manged/ administered by local authorities and public or private undertakings. 10. So far the „aided elementary 14 schools‟ are concerned, a combined reading of sub-section (2) and sub- section (4) of section 3 of the Act, shows that after examining the feasibility of taking over of such schools, the District Committee has to determine a date with effect from which the State Government has to take over such schools. In the case of Nand Keshwar Singh and others v. the State of Bihar and others, 1985 PLJR 608, it has been held that once the District Committee determines the date for taking over and the Managing Committee of such aided elementary schools voluntarily hands over the control of the school to the Government, then in law it can safely be presumed that the school has been taken over by the Government and the consequences will follow. 11. Examination of the scheme envisaged under the Act shows that the legislature has not provided any mode or mandate for taking over of elementary schools of the categories other than those enumerated in sub sections (1), (2) and (3) of Section 3 of the Act. Let us take the example of unaided elementary schools as defined under clause (d) of Section 2 of the Act. „Unaided Elementary School‟ has 15 been defined to mean a private school recognized by the Government and which is not in receipt of any Government grant. Now even if in case of this category of schools, the District Committee examines the feasibility of its take over by the State Government, there is no provision under the Act to give a further treatment to the process of examining the feasibility. The Act has maintained a complete silence as to what the District Committee has to do after examining the feasibility of taking over of such unaided elementary schools. The Act has neither provided any machinery for taking over of such schools by the State Government nor it has been anywhere made incumbent on the State Government to take over the schools of such category.” Yet again in the case of Ramnath Ram & ors. vs. the State of Bihar & ors., reported in 1995(1) PLJR 359, this very aspect relating to section 3 of the Act was gone into and it was held that any recommendation made by the Committee under section 3(4) was not binding on the State Government. This Court in the aforesaid judgment had held as follows: “7. … … … A conjoint reading 16 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 17 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 18 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.” 19 Thus, in view of the aforesaid concluded position both under section 3 of the Act and in the light of the aforementioned judgment of the Apex Court and this Court it must be held that mere recommendation of the Committee would not clothe the petitioners any right for their school being taken over in terms of section 3 of the Act. From the inspection report it appears that the school as on the date of inspection in the year 1985 had no building of its own and was running in a rented premises. There is also nothing on record to show that the Managing Committee of the school at the relevant point of time in the year 1976 had agitated the grievance of its school being taken over despite a favourable report. The teachers of the school appointed by the Managing Committee of a private institution, therefore, cannot claim as a matter of right to become a Government servant when the institution in question had never been taken over by the State Government under section 3 of the Act. As has been noted above, there is a 20 specific stand of the respondent Director, Primary Education that the Government does not intend to take over any elementary school after the year 1991 and in fact the earlier decision of taking over of more than 900 schools had to be de-notified. In that view of the matter, this Court will have to go into the basic issue of issuance of a writ of mandamus at the instance of the petitioners for take-over of the school. As is well settled a writ of mandamus can only be issued if there be a legal right in the person claiming such relief and the corresponding legal duty on the authority who either implicitly or expressly refuses to discharge such an obligation. Apparently from the reading of the provisions of the Act it does not transpire that any teacher of a private school had a right to become Government servant unless the school itself was taken over. There was no right vested in a teacher of a private school to get the school itself taken over. Thus, no writ of mandamus can be issued at the instance of the petitioners especially when there is also no corresponding duty on 21 the State to take over each and every school as was functioning on the date the 1976 Act came into force. Mere expectation or a process of consideration cannot lead to a right and therefore, this Court would find it difficult to issue a writ of mandamus for take over of the school of the petitioners. The last submission as with regard to discrimination has to be also noted for its being rejected, inasmuch as from the same order, contained in Annexure 19 to the interlocutory application, it is clear that the Deputy Development Commissioner in capacity of the Chairman of such Committee had sent the recommendation of the Committee as would be manifest from paragraph 1 of the notification clearly referring to approve the recommendation of the Committee as also that of the D.D.C. Once this aspect becomes clear it would be difficult for this Court to entertain the plea of discrimination only on the ground of there being no proper recommendation for take over of the aforementioned Nilkanth Balika Madhya Vidyalaya, Chainpur, Saharsa. The last of the submission as with 22 regard to pendency of case of Manish Kumar should not delay this Court, inasmuch as the claim of Manish Kumar was only for payment of his salary and he did not approach the Government for take over of the School as is clear from reading of Annexures 30 and 31 of the writ application. Thus, for the reasons indicated above, this Court would find no merit in this application and the same is, accordingly, dismissed. (Mihir Kumar Jha,J.) Patna High Court Dated 21st June, 2011 A.F.R./Surendra