IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12935 of 2005 1. Kedar Prasad Singh, son of Madhav Singh, resident of Village Sarsu, P.S. Atri, District Gaya. 2. Umesh Prasad Singh, son of Chandrika Singh, resident of Village Pura, P.S. Wazirganj in the district of Gaya. 3. Yadunandan Prasad Singh, son of Baijnath Singh, resident of Village Bhura, P.S. Wazirganj in the district of Gaya. 4. Ram Chandra Singh, son of Jhulan Singh, resident of Village Koiri Bigha, P.S. Akbarpur, Distt. Nawadah. 5. Krishna Kumar Kamta, son of Ram Nath Singh, resident of Village Milki, P.S. Wazirganj, District Gaya. 6. Suresh Singh, son of Ayodhaya Singh, resident of Village Kurkihar, P.S. Wazirganj, District Gaya. 7. Shyam Sunder Singh, son of Bhuneshwr Singh, resident of Village Kalaunda, P.S. Akbarpur, District Nawadah. 8. Ramautar Singh, son of Ram Swaroop Singh, resident of Village Sakarpura, P.S. Akarpur, District Nawadah. 9. Binod Kumar, son of Kameshwar Singh of Village Sarsa, P.S. Atri, District Gaya. 10. Shreekant Pandey, son of Chandrika Pandey, resident of Village Dhandhar, P.S. Wazirganj. 11. Umeshwar Prasad Singh, son of Rameshwar Singh, resident of Village Dhandhar, P.S. Wazirganj, Distt. Gaya. 12. Raj Ballam Singh, son of Sheo Balak Singh, Resident of Gangta, P.S. Akberpur, District Nawadah. -------- Petitioner Versus 1. The State of Bihar. 2. Commissioner, Human Resources, Govt. of Bihar, Patna. 3. Director, Primary Education, Govt. of Bihar, Patna. 4. District Superintendent of Education, Gaya. 5. Education Sub-Divisional Officer, Gaya. 6. District Treasury Officer, Gaya. -------- Respondents ----------- 14 19.7.2011 Having heard learned counsel for the parties and taking into account that the prayer of the petitioner in this writ application for being extended the benefit of taken over government school, would squarely depend on the scope of Section 3 of the Bihar Non-Government Elementary School (Taking Over of Control) Act, 1976, this Court in view of 2 the specific stand taken by the respondent, Director of Primary Education that the said school was never taken over by the State Government, would find it difficult to issue a mandamus only on the basis of either an order of recognition of the school dated 30.12.1967 (Annexure-1) or the office order of the District superintendent of Education, Gaya dated 22.3.1983 for taking over the assets of the school when D.S.E. had never been vested with any power to take over and nationalize the private school. In this context, Section 3 of the Take Over Act, being relevant, is quoted hereinbelow:- “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 effete from the date which shall be determined by 3 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 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.” As would be apparent, the school of the petitioner does not fall within the 4 category of Section 3(1) schools which were the schools already being run by the statutory bodies or local authority i.e. the district mode or municipal corporation etc. The school, in hand, of the petitioner is said to be an aided school being run by the Managing Committee. Such school under Section 3(2) could have been taken over only with the specific prior approval and order of the State Government in terms of Section 3(2) of the Act. There is no such order on record and merely on inference, this Court would not be in a position to hold that the school was already taken over by the State Government. The Director, Primary Education, in fact, in his detailed affidavit has made this aspect clear by asserting that the school, in question, was an aided school where payment of salary was being made from the funds of the State Government but, the school, in question, was never taken over by the State Government. In that view of the matter, this Court would find it difficult to issue a writ of mandamus for taking over of the school, in question. Reference in this connection may be made to the judgment of the Apex Court in the case of State of Bihar & 5 Ors. Vs. Sri Chandradip Rai & Ors. reported in AIR 1981 SC 2071, wherein, the Apex Court interpreting the scope of section 3 of the Act 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 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, 6 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 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 7 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 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 of sub-section (2) and sub-section (4) of 8 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 9 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 (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 10 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.” 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. That being so, this application is dismissed but, such dismissal will not affect the continuance of the school as an aided institution or the payment of salary of the teachers who were being paid their salary as an employee of the aided institution according to the norms of the Government. Rsh (Mihir Kumar Jha, J.)