Patna High Court
The State Of Bihar & Ors vs Hira Mani @ Hira Muni Devi on 5 August, 2008
Author: C.M.Prasad
Bench: Barin Ghosh, Chandra Mohan Prasad, C.M.Prasad
Letters Patent Appeal No.1186 of 2000.
----
Against the judgment and order dated 30th March
2000 Passed in C.W.J.C.No. 11422 of 1994.
-------
THE STATE OF BIHAR & ORS-------------------Appellant.
Versus
HIRA MANI @ HIRA MUNI DEVI------------Respondents.
- - - - -- -
For the Appellants : Mr. Anil Kumar, G.P.XI.
For the Respondents : Dr.Alok Kumar Sinha
&
Mr.Prabhakar Nath Rai,
Advocates.
PRESENT
THE HON'BLE MR. JUSTICE BARIN GHOSH.
THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD Barin Ghosh Sub-section (1) of Section 3 of the Bihar Non-
& C.M.Prasad,JJ Government Elementary Schools (Taking Over of Control) Act, 1976 (in short, 'the Act') directed compulsory take over of schools by the State Government with effect from 1st January 1971 of all such elementary Schools managed by the District Boards, Zila Parishads, Municipal Boards, Patna Municipal Corporation as well as those opened under the Expansion and Improvement Scheme. Sub-section 2 of Section 3 of the Act directed take over by the State Government of such aided elementary schools, Managing Committee of which have handed over voluntarily control of the Schools to the state Government with effect from the date -2- which shall be determined by the District Committee referred to in sub-section (4) of Section 3 of the Act. Sub-section (3) of Section 3 of the Act granted a discretion to the State Government to take over elementary schools administered by any public or private undertaking with the date to be specified by Notification in the Official Gazette. In order to assist the State Government to discharge its obligation under sub- sections (1) and (3) of section 3 of the Act. Clause (a) of sub- section (4) of Section 3 of the Act directed constitution of District Committees by such members as mentioned therein. Clause (b) of sub-section (4) of Section 3 of the Act authorized the State Government to make changes in the personnel of the District Committees so constituted. Section 4 of the Act provided the consequences of taking over. In accordance with sub-section (1) thereof all the 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. Sub-section (2) of Section 4 of the Act -3- provided that every Officer, teacher or other employees 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 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 taking over of the school and shall continue to do so unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government.
The writ-petitioner respondent in C.W.J.C.No.11422 of 1994 claimed that she was working as a maid in Ram Chandra Prasad Mahashaya Arya Shishu Vidyalaya, Chapra from 1970 and the said school became a Government School with effect from 17th January 1984 by reason of taking over thereof by the State Government under the Act. She contended that she has not been given the benefits of sub-section (2) of Section 4 of the Act.
By the judgment and order under appeal, the said writ petition was allowed. Aggrieved thereby, the present appeal -4- has been filed.
The writ petition was not contested by the appellant by filing a counter affidavit. Even before us, the Notification by which the School was taken over has not been produced. It has not been disputed that the school was taken over with effect from 17th January 1984 under the Act and the learned counsel for the appellant submitted that the school was taken over by exercise of discretion granted to the State Government under sub-section (3) of Section 3 of the Act. The appellant has not brought on record the report of the District Committee submitted after examining the feasibility of taking over of the school. It was, however, contended that Government Elementary Schools do not have posts of maid and, accordingly despite sub-section (2) of Section 4 of the Act, the services of the petitioner-respondent had not been taken over. In this connection learned counsel for the appellant first cited a judgment of a Division Bench of this Court in the case of Kumari Vidyapati Kushwaha Vs. The State of Bihar, reported in 2001(1) PLJR 791, and drew our attention to Para-5 of the reported judgment where the Division Bench has held that in so far as the peon is concerned, i.e. petitioner no.4, the -5- question of any absorption does not arise, as any provision for a peon had been done away in elementary and middle schools as back as in 1949. A reading of this judgment would not suggest what kind of school the same was immediately before its take over and under which sub-section of Section 3 of the Act the said School was taken over. In relation to a private school, directions of the State Government had no application. Bing aware of the state of affairs, the Legislature expressly held out in sub-section (2) of Section 4 of the Act that in addition to teachers, Officers and other employees shall also be taken over on the same terms and conditions. If apart from teachers and clerks, private elementary schools were not supposed to have had any other employee, the Legislature would not have used superfluous words in sub-section(2) of section 4 of the Act Learned counsel for the appellants also cited a judgment of the Hon'ble Supreme Court rendered in the case of State of Bihar Vs. Ramdeo Yadav, reported in 1996(2) PLJR 34. From Paragraph-3 of the said judgment it would be evidenced that the school in question, which was taken over, was an aided school, the same was taken over as a -6- consequence of handing over of the school in terms of sub- section (2) of Seduction 3 of the Act and aid was given for payment of salary of trained teachers and other employees, who were seven in number, but not for payment of salaries to the respondents, before the Hon'ble Supreme Court. In that background in Paragraph-8 of the reported judgment, the Hon'ble Supreme Court held that in view of Section 3(2) read with Section 3(4) of the Act, the operation of taking over of an aided Primary School under private Management Committee despite handing over of management voluntarily to the control of the Government, would be operative only after the recommendation made by the Committee constituted under Sub-section (4) of section 3 of the Act is accepted by the Government. The recommendation in that case was in relation to only those seven persons, for whom aid was being provided by the State Government, and, accordingly, the other two persons who claimed the benefit under sub-section (2) of Section 4 of the Act lost before the Hon'ble Supreme Court. It is surprising that despite knowing the law, the basic facts have not been brought on record, though it has been admitted that the school was taken over by exercising discretion under -7- sub-section(3) of section 3 of the Act, but no effort has been made to show that the Committee constituted by sub-section (4) of Section 3 of the Act made a recommendation excluding the writ petitioner. That being the position, we have no other option but to dismiss the appeal, which we hereby do, without any order as to costs.
Patna High Court, (Barin Ghosh,J)
Dt. 5th August,08
N.A.F.R. Jay/
(C.M.Prasad,J)