IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2560 of 2004 SATYADEO PRASAD GUPTA, son of Motilal Gupta, resident of village Bhagta Tola, P.S. Raghopur, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents with CWJC No.2595 of 2004 MAUJI LAL YADAV, son of Yogi Lal Yadav, resident of village Kumiyahi, P.S. Tribeniganj, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents with CWJC No.2607 of 2004 MAHADEO THAKUR, son of late Dukhi Thakur, resident of village Mushaharniya, P.O. Kumiyahi, P.S. Triveniganj, District Saharsa (Supaul) ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents with CWJC No.2695 of 2004 RAMDEO MANDAL, son of late Magain Mandal, resident of village Donapathi, P.S. Donapathi, District Saharsa ... Petitioner Versus 2 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents with CWJC No.2609 of 2004 RAMESH PRASAD YADAV, son of late Thakur Prasad Yadav, resident of village Chandi Asthan Jamhra, P.O. Biraipur, P.S. Sonbarsa Raaj, District Saharsa ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents with CWJC No.2768 of 2004 TILKESHWAR PRASAD YADAV, son of late Dhorhay Prasad Yadav, resident of village Mehaseemar, P.O. Sigiaavan, District Saharsa, Supaul ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents with CWJC No.2672 of 2004 FULESHWAR SAH, son of late Munilal Sah, resident of village Saropatti, P.O. Lalpur Saropatti, P.S. Singeshwar, District Madhepura ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents with CWJC No.3658 of 2004 CHANDRAMANI SAH, son of Sri Ram Charit Sah, resident of village Tariama, P.O. Tariama, P.S. Simri Bakhitiarpur, District Saharsa ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director (Primary Education) cum Additional Secretary, New Secretariat, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. District Magistrate, Saharsa 5. District Superintendent of Education, Saharsa 6. Regional Education Officer, Saharsa Sadar, Saharsa ... Respondents with CWJC No.2279 of 2004 SARYUG SAH, son of late Tilak Sah, resident of village Kumiyahi, P.s. Triveniganj, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR 2. Director, Primary Education, Govt. of Bihar, Patna 3. Secretary, Human Resources and Development, Govt. of Bihar, Patna 4. Collector, Supaul 5. District Superintendent of Education, Saharsa 6. District Superintendent of Education, Supaul ... Respondents ----------- 4. 8.11.2010 Heard learned counsel for the petitioners and the counsel for the State. The prayer in all these writ applications is identical. The petitioners in all these cases claiming to be the teachers of privately managed Primary and 4 Middle school of the present Saharsa/ Supaul district seek a direction for payment of salary from 1988 onwards till this day on the ground that when their schools were taken over in terms of 1976 Take-over Act with effect from 1.1.1971 they would be automatically entitled for payment of their salary. Mr. Anil Kumar Mukund, learned counsel appearing on behalf of the petitioners, in this regard has submitted that it is an admitted fact that the schools in question in which the petitioners are claiming to be its teachers were taken over in terms of 1976 Take-over Act and therefore, once Section 4(2) of the said Act had envisaged automatic take-over of services of the working teachers, the petitioners cannot be denied the benefit of payment of their salary, especially when they have also continued to work in all this period. Mr. Mukund also relies on a number of orders passed by this Court wherein issue has been remitted to the Director, Primary Education for deciding as to whether the services of the concerned teachers were fit 5 to be taken over and consequently also entitled for payment of salary. Counsel for the State appearing in C.W.J.C.No. 2560/2004, however, has relied on the counter affidavit filed in this case, according to which the petitioners’ cases were examined by the District Education Establishment Committee in the meeting held on 24.12.1989 and that it was found that their services were not taken over due to want of specific Government decision taking over their services as envisaged under section 4(2) of the Act. Learned counsel for the State in this respect has drawn attention also to the three conditions imposed in the letter dated 8.12.1992 and it is his case that none of the petitioners fulfil even the criteria mentioned therein, namely, passing of matriculation examination prior to 1.1.1971, completion of age of 18 years prior to 1.1.1971 and continuing in service from that date in the school as also being covered by the staffing pattern as per student teacher ratio 1:40 and 1:30 for the Primary and Middle Schools after deducting number of teachers already working in such 6 school with formal order of approval of the State Government. In this regard he has also referred to an order of the learned Single Judge dated 18.12.2003 in C.W.J.C.No. 9533/2003 (Uttam Prasad Yadav & anor. vs. State of Bihar & ors.), wherein according to him in exactly similar case the learned Single Judge has found the claim to be not only stale but also beyond the concept of take-over envisaged under Bihar Non- Government Elementary Schools (Take-over of Control) Act, 1976. Counsel for the petitioners in reply would submit that first of all even if the claim of the petitioners were not valid and were sought to be rejected by the District Education Establishment Committee, as is claimed in their counter affidavit filed in C.W.J.C.No. 2560/2004 it was necessary for them to give individual reasons applicable in the cases of the petitioners, inasmuch as these petitioners were appointed in the school not only after having qualification of matriculation before 1.1.1971 but also they were aged above 18 years as on 1.1.1971. 7 Mr. Mukund in this context has also submitted that the reliance placed by the learned counsel for the State on the order of the learned Single Judge in the case of Uttam Prasad Yadav (supra) is wholly misplaced, inasmuch as the aforesaid order was set aside by the Division Bench by an order dated 9.2.2004 in L.P.A.No. 110/2004 with a direction to the Director of Primary Education to reconsider the cases of Uttam Prasad Yadav & anor., who were writ petitioners of C.W.J.C.No. 9533/2003. In the opinion of this Court the claims which the teachers may have of such schools which are said to have been taken over in terms of sections 3 and 4 of the Take-over Act, 1976 has to be strictly decided as per provisions made in the Act. It is no secret that the State Government had envisaged take-over of the Primary and Middle Schools with retrospective effect i.e. 1.1.1971 by giving a concept of fictional take-over only in the cases of elementary schools managed by the District Board, Zila Parishad, Municipal Board, Patna Municipal Corporation and those opened under 8 the Expansion Improvement Scheme. Thus, if the schools of the petitioners fall in the aforementioned category for them there had to be a specific order of take-over as envisaged under section 4 of the Act because their selection made of the school by the District Planning Committee had to receive prior approval of the State Government and the State Government at that point of time had also the power and jurisdiction to select the name of working teachers and the conditions on which their services will be taken over. Unfortunately in these cases the pleading of either of the side to say the least is wholly unsatisfactory. It is very difficult to find as to whether the schools in question fall in the category of schools under section 3 of the Act or whether such schools are the schools for whom the individual decision had to be taken in terms of section 4 of the Act. There is also no separate consideration of the cases of the petitioners by filing separate counter affidavit and one counter affidavit which has been filed in C.W.J.C.No. 2560/2004 does 9 not answer the main question. In that view of the matter and considering the fact that the order of the learned Single Judge in the case of Uttam Prasad Yadav (supra) was set aside by the Division Bench in L.P.A.No. 110/2004 by remitting the matter to the Director, Primary Education, this Court would also adopt the same course by giving a direction to the Director, Primary Education to take his decision strictly in accordance with law. In order to expedite the matter this Court would give liberty to the petitioners to approach the Director, Primary Education by filing their separate individual representation giving out details of their appointment and other necessary facts regarding their take-over of school and the Director, Primary Education, thereafter having obtained the report from the concerned controlling Field Officers/ District Education Establishment Committee will pass his own order in terms of sections 3 and 4 of the Take-over Act. The question of payment of salary will be strictly abide 10 by the decision to be taken by the Director, Primary Education, inasmuch as if it is found that the petitioners’ services were never taken over as per provisions of the Act there would be no question of payment of salary but, on the other hand, if it is found that the petitioners’ services were actually taken over and that the petitioners also qualified in terms of the three conditions imposed in the letter dated 8.12.1992, a decision would also be taken for payment of their arrears and current salary strictly in accordance with law. Such exercise shall be completed by the Director, Primary Education within a period of six months from the date of filing of the representation by the individual petitioners. With the aforementioned observation and direction, these applications are disposed of. (Mihir Kumar Jha,J.) Surendra/