Ramnath Ram and Others vs The State of Bihar and Others

S.N. Jha, J.—This writ petition has been filed for quashing the order as contained in letter ,of the Block Education Extension Officer, Dehri, pursuant to directions of the Director, Primary Education, Bihar dated June 17, 1977 and the Regional Deputy Director of Education, Patna Division, dated June 30, 1977, staying take over of the Sitaram Madhya Vidyalaya, Pakaria (hereinafter referred to as ''the School''), and for direction to the Respondents to take over the services of the Petitioners, absorb them in the Government service and pay them salary and allowances with effect from October, 1977.

The writ petition could be dismissed summarily on the ground of staleness of the claim. In deference to the submissions of the learned Counsel for the Petitioners, however, I propose to pass a short but reasoned order on merit.

The core of controversy is whether the school has been taken over by the State or not. It may be stated that according to the stand of the Respondents the school was never taken over by the Government nor the services of the teachers were approved. According to them, a primary school duly recognised by the Government from its very inception at Pakaria was running which-was later upgraded to a Middle School. The same is running as a Government school. According to them, Sitaram Middle School i.e. the school in question is a separate school being run by private management. Notwithstanding the aforesaid stand of the Respondents, counsel for the Petitioners made submissions on merit stating that the school in question is one and the same and that there is no other school running in the radius of 3 kms.

The thrust of the argument is that the school was taken over with effect from February 19, 1977 when Annexure-3, a letter to the above effect was issued by the Regional Deputy Director, Education, Patna Division. According to the counsel, the school is an aided school and so far as aided schools are concerned, no notification of take over is required to be made. The report of the Special Board accompanied by voluntary handing over of the a control of the school amounts to take over. The decision of the learned Single Judge in Nand Keshwar Singh and Ors. v. The State of Bihar and Ors. 1986 PLJR 608 does seem to support the above view. It is this aspect of the matter which I propose to deal with in some details.

Section 2(a) of the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 (hereinafter referred to as ''the Act'') defines "Elementary school" to mean and include schools of different grades upto class VII established and administered by District Board and Zila Parishad, Municipal Board and Patna Municipal Corporation. Section 2(c) defines "aided elementary schools" to mean a private school administered by a Managing Committee which has been in receipt of Government grant prior to its being taken over by the State Government. "Un-aided Elementary schools" has been defined u/s 2(d) to mean a private school recognised by the Government but which is not in receipt of any Government grant.

Section 3, which is the charging section of the Act, may be quoted at this stage:

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.

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 Committee referred to in Sub-section (4) for this purpose.

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.

(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-Society,

(iii) District Education Officer,

(iv) District Inspector of Schools,

(v) Sub-divisional Education Officer of the concerned sub-division, 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.

Section 3 of the Act, it would appear, provides for different modes of take over of different categories of Elementary Schools. While schools established and administered by local bodies and those opened under the Expansion and Improvement scheme as mentioned in Sub-section (i) stand automatically taken over with effect from January 1, 1977, with respect to aided schools, Sub-section (4) provides for examination of feasibility of take over by District Committee consisting of the personnel as mentioned therein.

S.B. Sanyal, J., in Nand Keshwar Singh (supra) has taken the view following certain decisions on the point that once the District Committee passes an unanimous decision for taking over of the schools with effect from certain date requirement of Sub-section (2) of Section 3 for the purpose of take over of the school is complete and no other act is required on the part of the Government to complete the process of take over. In State of Bihar and Others Vs. Chandradip Rai and Others, the Supreme Court appears to have held otherwise. Sanyal, J. noticed the said decision of the Supreme Court but held that the decision applies to schools covered by Sub-section (3) of Section 3 alone. With utmost regret and respect to the learned Judge I am not able to reconcile myself to the said view. A conjoint reading of Sub-section (2) and Sub-section (4) of 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 nationalise 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 by the State Government u/s 3 of the Act, the consequence set forth Under Sub-section (2) of Section 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.

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 Prasad Sinha and Others Vs. The State of Bihar and Others, 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.

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 relates to Project Girls schools which form different class and, therefore, is not relevant for the purpose of this case. In Rejendra 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.

For all these reasons, I am unable to find any merit in the claim of the petition. The writ petition is, accordingly, dismissed.