IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12481 of 2006 Mosmat Sarswati Devi, wife of late Virat Prasad Kushwaha, resident of Village Bishdhari, P.O. Bishdhari, P.S. Kesharia, District East Champran at Motihari. ------------ Petitioner Versus 1. The State of Bihar. 2. The Director, Secondary Education, Government of Bihar, New Secretariat, Patna. 3. The Regional Deputy Director, Education Tirhut Division, Muzaffarpur. 4. The District Education Officer, Muzaffarpur. 5. The Sub-Divisional Education Officer, Muzaffarpur West, District Muzaffarpur. 6. The Headmaster, Rajkiyakrit, Mahabir High School, Baidyanathpur, Kunoul, P.S. Sahebganj, District Muzaffarpur. -------- Respondents ----------- 8 1.7.2011 Heard learned counsel for the petitioner and counsel for the State. In the considered opinion of this Court, the following prayer of the petitioner:- “1. That this is an application for issuance of an appropriate writ/ writs for commanding and directing the authority concerned for shifting the service of the husband of the petitioner with effect from 01.4.1974 instead of 17.8.1978 and the further prayer of the petitioner for the fixation and the payment accordingly including the death-cum-retirement benefits for which she is entitled in accordance with the law.” seems to be wholly misconceived, inasmuch as, it was the husband of the petitioner, who was 2 the Government employee and he did not ever think of his service being taken over from 1.4.1974 when he had all the reasons to be aggrieved as his services were taken over only with effect from 17.8.1978. The husband of the petitioner was a Teacher in a primary school which was taken over under Section 3(3) of the Bihar Non- Government Elementary School (Taking over the Management and Control) Act, 1976 (hereinafter to be referred to as ‘the Act’), which reads as follows:- “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 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 3 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 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 Committee so constituted.” Such a school, under Section 3(3) of 4 the Act had to be taken over only with effect from the date fixed by the State Government. Admittedly, the school of the husband of the petitioner was taken over on by the State Government on 7.2.1976 and initially in terms of Section 4 of the Act, reading as follows:- “4. Consequences of taking over. – (1) All the assets and properties whether movable or immovable owned or possessed by the schools taken over by the State Government under section 3 including lands, buildings, documents, books and registers relating to the schools shall stand transferred to and be deemed to have come into the possession and ownership of the State Government. (2) Every officer, teacher or other employee holding any office or posts in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of State Government with which such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do unless and until such tenure remuneration, terms and conditions of service are 5 duly altered by the State Government. (3) The service of employees of local bodies working on deputation in the office of the District Superintendent of Education, Subdivisional education officer- cum-Municipal Education Officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over by the Government and such employees shall in case of their opting to Government service, be deemed to have become Government servants with effect from the date of enforcement of this Act.” the service of only 6 Teachers were taken over leaving the husband of the petitioner who was not made a Government servant w.e.f. 7.2.1976. Subsequently, the husband of the petitioner had represented his case for inclusion of his name and his services were taken over only with effect from 17.8.1978. Though such order has not been brought on record by the widow, the wife of the deceased employee while seeking her relief in this writ application but then it is clear from the averment in the writ application that the husband of the petitioner became Government 6 servant only w.e.f. 17.8.1978 but he did not seek any legal remedy in his life time probably by taking into account the condition imposed in the memo no.23183-86 dated 18.12.1980 wherein the effective date of take over of his service was 17.8.1978. In fact, the husband of the petitioner having accepted the terms of his take over of his service continued to work till he had died in the year 1999 when all his death-cum-retirement benefit was also paid to the petitioner. After such a finality was arrived, the widow/petitioner has filed this writ application on 16.10.2006 claiming that the service of her husband should have been taken over by the State Government with effect from 1.4.1974 in place of 17.8.1978 and as such, she should be now given the benefit of the pay fixation as also revised salary and retirement benefit. In the considered opinion of this Court, the widow of the Government servant whose services were taken over on 17.8.1978 will have no right to go beyond what was not even claimed by the husband of the petitioner in his life time. The plea 7 that the husband of the petitioner had filed representations for this purpose also would not inspire any confidence specially when it is found that the school itself was taken over with effect from 7.2.1976 whereas the petitioner has come out to claim take over of the service of her husband with effect from 1.4.1974. In any event, the State Government decision of take over of the school as per the provision of Section 3(3) of the Act w.e.f. 7.2.1976 having been not challenged by the husband of the petitioner in his life time and also not being assailed by the petitioner in this case, no direction can be issued by this Court only for take over of the services of the husband of the petitioner in isolation with effect from 1.4.1974. Thus, on account of delay as also on merit, this Court would not find any reason to interfere in the matter. This application is wholly misconceived and is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)