IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1723 of 2007 1. Braj Nath Thakur, SON OF LATE RAM CHANDRA THAKUR, RESIDENT OF VILLAGE- DURGA PATTI, P.S.- MADHWAPUR, DISTRICT- MADHUBANI. 2. HRIDAY NARAYAN JHA, SON OF LATE SUSHIL JHA, RESIDENT OF VILLAGE- BHABHAM, P.S.- ANDHRATHADHI, DISTRICT- MADHUBANI. 3. AMAR NATH THAKUR, SON OF LATE DR. BACHASPATI THAKUR, RESIDENT OF VILLAGE- BARHA, P.S.- BENIPATTI, DISTRICT- MADHUBANI :---PETITIONERS. Versus 1. The State Of Bihar THROUGH CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. FINANCE SECRETARY, GOVT. OF BIHAR, PATNA. 3. THE COMMISSIONER AND SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT (HIGHER EDUCATION), GOVT. OF BIHAR, PATNA. 4. THE DIRECTOR, HIGHER EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE DIRECTOR, LALIT NARAYAN MISHRA INSTITUTE OF ECONOMIC DEVELOPMENT AND SOCIAL CHANGE, PATNA :---RESPONDENTS. ---------------------------------- For the petitioners :- M/S. Ranjan Kumar Jha & Anju Jha, Advocates. For the State :- Mr. Tej Pratap Singh, A.C. to S.C.-17. For the L.N.Mishra Institute of Economic Development and Social Change :- Mr. R.K.Shukla, Advocate. ===== 6. 05.08.2011. Heard learned counsel for the petitioners, State and the counsel for Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna. 2. Petitioners are the non-teaching employees of Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna. They have filed this writ petition asserting that the Institute was taken over by the State Government under the provisions of the Bihar Private Educational Institutions (Taking Over) Act, 1987 (hereinafter referred to as “Take Over Act”). Section 6 of 2 the Take Over Act provides for determination of terms and conditions of services of the teaching staff and other employees of the Institute by seeking report from the committee constituted under sub-section (2) of Section 6 of the Take Over Act. It is further submitted by the counsel for the petitioners that till date the service conditions of the teaching and non-teaching employees of the Institute has not been finalized, as is required under Section 6 of the Take Over Act . The present writ petition was filed on 08.02.2007 for a direction to the State Government to determine and finalize the service condition of the teaching and other employees of the Institute. 3. After several hearing of the writ petition State Government filed counter affidavit on behalf of Respondent No. 4 on 10th September, 2008 placing on record notification of the State Government bearing Memo No. 1736 dated 15.10.2007, Annexure-A, whereunder a Committee has been constituted in terms of sub-section (2) of Section 6 of the Take Over Act for submitting report and finalization of the service conditions of the teaching and non-teaching employees of the Institute under sub-section 3,4 of the Take Over Act. 4. Counsel for the Institute has filed counter affidavit on behalf of Respondent No. 5 annexing the notification of the State Government under sub-section 3 (1) of Section 11 of the Take Over Act, whereunder 2004 Rules have been notified providing for service condition of the Lalit Narayan Mishra Economic Development and Social Change Society. 5. Counsel for the petitioners states that in terms of the provisions of the Take Over Act Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna was taken over and not Lalit Narayan Mishra Economic Development and Social Change Society. In this connection learned counsel for the petitioners has also referred to the judgment of the Hon’ble Supreme Court in the case of Lalit Narayan Mishra Institute of Economic Development etc. Vs. State of Bihar & Ors., reported in 1988 PLJR Supreme Court 45, (Annexure-6), whereunder clear distinction has been made between Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna and Lalit Narayan Mishra Economic Development Society. 6. Counsel for the Institute made objection that the copy of the rejoinder affidavit annexing the judgment of the Hon’ble Supreme Court in the case of L.N.Mishra Institute of Economic Development has not been served on him. The rejoinder affidavit is being used by this Court only for the purpose of reference to the judgment which is a reported judgment and the learned counsel for the Institute is also aware of the said judgment, as such, even if the rejoinder affidavit has not been served 4 on the counsel for the Institute, such non-service will not restrain this Court from proceeding ahead with the matter. 7. From the judgment of the Hon’ble Supreme Court it is quite evident that under the Take Over Act Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna was taken over and not the Society registered under the Societies Registration Act, 1860. Under notification dated 08.01.2005 the rules for the Society had been notified and not for the Institute which was taken over under the Take Over Act. State Government also appreciated the said distinction after this Court in several judgments observed that service condition of the teaching and non-teaching employees of the Institute has not been framed under Section 6 of the Take Over Act. Having appreciated such legal position the State Government came out with the notification dated 15.10.2007, Annexure-8. 8. Inspite of constitution of the committee under sub-section (2) of Section 6 of the Take Over Act under notification dated 15.10.2007 the scheme providing for the service condition of the teaching and non-teaching employees of the Institute have not yet been framed otherwise the same should have been placed on record. 9. Accordingly, this writ petition is disposed of directing the State Government in the department of 5 Human Resource and Development to finalize and determine the service condition of teaching and non- teaching employees of the Institute in terms of sub- section (3),(4) of Section 6 of the Take Over Act, as early as possible, in any case within a period of three months from the date of receipt/production of a copy of this order before the Principal Secretary, Human Resources Development Department, Government of Bihar. P.K.P. (V.N.Sinha,J.)