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Shri Sidheshwar Prasad & Ors. v. The State Of Bihar & Ors.
Structured Summary of the Opinion (S.N. Jha, J.)
Factual and Procedural Background
This writ petition was filed seeking a direction to the respondents to take over Sardar Patel Madhya Vidyalaya, Mithapur, Patna under Section 3(4) of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, and to pay salary and other consequential benefits to the petitioners. The petitioners described themselves as the Secretary, Headmaster, Assistant Teachers and Non-teaching staff of the School.
When the petition came up for admission before a Bench of this Court on 27.11.90, reliance was placed on orders where directions had been issued for take-over of schools. The Bench considered it desirable that the question whether such a direction can be issued by the High Court be authoritatively decided by a Special Bench in the light of the decision of the Supreme Court in State of Bihar v. Shri Chandradip Rai (AIR 1981, Supreme Court 2071) and directed that the records be placed before the Chief Justice for constituting a Special Bench. The matter was thereafter listed before the present Bench.
Legal Issues Presented
- Whether the High Court can issue a direction to the State Government to take over a non-government elementary school under Section 3 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976.
- Whether the decision of the District Committee (constituted under Section 3(4)) operates as a take-over of the school, or whether the Committee's decision is merely recommendatory and the actual take-over requires action by the State Government.
- Whether persons (teachers and non-teaching staff) of a school are entitled to payment of salary and other consequential benefits under Section 4(2) where no notification effecting take-over under Section 3 has been issued.
- Whether the procedure under Section 3(4) applies to both aided and unaided elementary schools (interpretation of Section 3(2) read with Section 3(4)).
Arguments of the Parties
Petitioners' Arguments
- The petitioners contended that once the District Committee gave a favourable conclusion after examining feasibility, the school would be deemed to have been taken over by the State Government, and the only discretion left to the State would be to fix the particular date of take-over.
- They relied on prior orders in which directions for take-over had been issued, and accordingly sought a writ directing take-over under Section 3(4) and payment of salaries and consequential benefits.
State / Respondents' Position (as reflected in the opinion)
- The opinion records that the matter regarding take-over was considered by the Director of Primary Education on the basis of a representation by the petitioners; the Director concluded, inter alia, that the school did not possess its own land and building and that it was not possible to ascertain the date of its establishment.
- The court treated the view reflected in prior case law and the Director's conclusion as demonstrating that the District Committee's decision is only recommendatory and that the competent authority of the Government may take an adverse view, thereby precluding a court's direction for take-over or payment solely on the basis of the Committee's decision.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Bihar v. Shri Chandradip Rai, AIR 1981, Supreme Court 2071 | The Supreme Court held that where the school has not been taken over by notification under Section 3 of the Act, the consequences set forth under Section 4(2) regarding payment of salary and other conditions of service of teachers and non-teaching staff do not ensue; those persons are therefore not entitled to such benefits. | The court relied on this holding to conclude that absent a take-over by notification, the petitioners are not entitled to salaries and other benefits under Section 4(2), and therefore the High Court could not mandate payment. |
| Ramnath Ram v. State of Bihar, 1995 (1) PLJR 359 | Held that the District Committee is merely a recommending body; the power to examine feasibility does not amount to authority to take-over. The phrase "shall be taken over by the State Government" in Section 3(2) indicates that further act by the State Government is required to complete take-over; absence of words "publication of notification in the official gazette" does not amount to abdication or delegation. | The court followed this reasoning to reject the petitioners' contention that the District Committee's favourable report itself effects take-over; it treated the Committee's conclusions as non-binding. |
| Rajendra Prasad Sinha v. State of Bihar, 1991 (1) PLJR 412 | Held that the Act does not provide for take-over of elementary schools other than those mentioned in sub-sections (1), (2) and (3) of Section 3. The power of the State Government in the matter of take-over is an executive power exercisable by the Government alone; the courts including the High Court cannot direct take-over and can at best direct reconsideration by the Government. | The court used this authority to support the proposition that it cannot, in exercise of writ jurisdiction, direct the Government to take over the school; the petitioners' request for a mandamus for take-over was therefore not maintainable. |
Court's Reasoning and Analysis
The court began with an analysis of the Act's structure and definitions: "Elementary School" and the distinctions between schools established/managed by local bodies (deemed taken over from 1.1.1971 under Section 3(1)), aided elementary schools (Section 3(2)), schools administered by public or private undertakings (Section 3(3) requiring notification), and other schools subject to the District Committee procedure under Section 3(4).
Interpreting Sections 3(2) and 3(4), the court concluded that the legislature intended the procedure in Section 3(4) to apply to both aided and unaided elementary schools where those schools are not covered by sub-sections (1) and (3). The phrase "elementary schools other than those mentioned in sub-sections (1) & (3)" was read as intentionally inclusive of unaided schools.
The court then identified the function of the District Committee under Section 3(4) as limited: its sole role is to examine the feasibility of take-over and to determine the effective date for take-over; it is essentially a recommending body. A "conjoint reading" of sub-sections (2) and (4) supports the view that after the District Committee's report, the ultimate decision rests with the State Government.
The court relied on earlier authority (notably Ramnath Ram and Rajendra Prasad Sinha) for the proposition that the District Committee's favorable conclusion does not itself operate as a take-over and that the State Government must take the further executive step to effect take-over. The absence of a mandatory requirement of publication in the Gazette in certain sub-sections does not mean the State has abdicated its executive role.
Applying these principles to the present matter, the court noted that the Director of Primary Education had considered the petitioners' representations and concluded, among other things, that the school lacked its own land and building and that the date of establishment could not be ascertained. Given that the District Committee's role is recommendatory and that an adverse view was taken by the competent government authority, the court held it could not issue a writ directing take-over or ordering payment of salaries and other consequential benefits solely on the basis of the Committee's decision.
The court also relied on the Supreme Court's holding in State of Bihar v. Sri Chandradip Rai that without a take-over by notification under Section 3, the consequences under Section 4(2) (payment of salary and service conditions) do not follow.
Holding and Implications
Holding: The writ petition is dismissed, and the court declined to make any positive order in favour of the petitioners. The dismissal was ordered without any order as to costs.
Implications:
- Direct effect on the parties: The petitioners' claim for a direction to take over Sardar Patel Madhya Vidyalaya and for payment of salary and consequential benefits was rejected. Because the competent authority of the Government took an adverse view and the District Committee's conclusion is recommendatory, the court could not force a take-over or payment.
- On entitlement to statutory benefits: Consistent with State of Bihar v. Shri Chandradip Rai, absent a take-over effected by the State under Section 3 (by appropriate action/notification), the consequences under Section 4(2) (payment of salary and related conditions) do not arise; the petitioners are therefore not entitled to those benefits on the present record.
- On the High Court's powers: The decision reinforces that the power to take over schools under the Act is an executive function of the State Government and that the High Court, in exercise of writ jurisdiction, is not competent to direct take-over; it may at best direct reconsideration where appropriate (as indicated in prior authority).
- Precedential effect: The opinion applies existing precedents to the facts; it does not purport to create a new principle beyond the interpretation and application of the Act as informed by earlier decisions cited in the judgment.
End of summary (based exclusively on the provided opinion).
S.N Jha, J.:— This writ petition has been filed seeking, in substance, direction to the respondents to take-over Sardar Patel Madhya Vidyalaya, Mithapur, Patna under Section 3(4) of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, and to pay salary and other consequential benefits to the petitioners.
2. The petitioners claim to be, respectively, the Secretary, Headmaster, Assistant Teachers and Non-teaching staff of the School. When the petition came up for admission before a Bench of this Court on 27.11.90, reliance was placed on orders whereby direction had been issued for take-over of the schools. The Bench considered it desirable that the question as to whether such a direction can be issued by the High Court be authoritatively decided by a Special Bench in the light of the decision of the Supreme Court in State of Bihar v. Shri Chandradip Rai AIR 1981, Supreme Court 2071 and accordingly directed the records of the case to be placed before the Hon'ble the Chief Justice for constituting a Special Bench. That is how the case has been listed before this Bench.
3. The Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (‘the Act’, for short), has been enacted to provide for the taking over of non-government elementary schools under the State control for better organisation and development of elementary education in the State of Bihar. “Elementary School” has been defined under Section 2(a) of the Act to mean a school of grades upto class-VII including (i) a school established and administered by the District Board and Zila Parishad under the provisions of the Bihar and Orissa Local Self-Government Act, 1885 (ii) a school established and administered by the Municipal Board under the provisions of Bihar and Orissa Municipal Act, 1922 and (iii) a school established and administered by the Patna Municipal Corporation Act, 1951. Section 3(1) of the Act provides for deemed take over of all such schools managed by the District Board, Zila Parishad, Municipal Board and Patna Municipal Corporation with effect from 1.1.1971
4. Apart from the above, the Act also provides for take over of the aided elementary schools and such elementary schools which are administered by any Public or Private undertaking. Different modes and procedure, however, have been laid down for take-over of such schools.
5. It would be useful at this stage to quote the entire Section 3 of the Act as hereunder:
“3. Taking over of Non-Government Elementary Schools by the 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 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) 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.
6. It may be mentioned here that “aided elementary school” has been defined under Section 2(c) of the Act to mean a private school which is administered by a managing committee and which has been in receipt of Government grant prior to its being taken over by the State Government. The term “unaided Elementary School” has been defined under Section 2(d) of the Act to mean a private school recognised by the Government and which is not in receipt of any Government grant.
7. It would appear that while Section 3(2) of the Act refers to “aided elementary schools” Section 3(4) of the Act refers to “elementary schools other than those mentioned in Sub-sections (1) & (3)”. In other words, although Section 3(2) relates to only aided elementary schools, by virtue of provisions of Section 3(4) the same procedure is to be followed in the matter of take-over of unaided elementary schools. The legislature was cognizant of the distinction between aided elementary schools and unaided elementary schools, and therefore, the expression “elementary schools other than those mentioned in sub-sections (1) & (3)” must be interpreted as including unaided elementary schools as well. If the legislature had intended otherwise, under Section 3(4) of the Act, it would have mentioned “aided elementary schools” and not “elementary schools other than those mentioned in sub-sections (1) & (3)”. According to me it is thus obvious that in the matter of takeover of both types of schools namely, aided and unaided elementary schools, the same procedure as laid down under Section 3(4) is to be followed.
8. It would also appear from the aforequoted provisions that Section 3 of the Act envisages different manner of take-over with respect to different categories of elementary schools. While schools established and administered by Local Bodies, such as the District Board, Zila Parishad, the Municipal Board and the Patna Municipal Corporation, and those opened under the Expansion and Improvement Scheme stand automatically taken-over with effect from 1.1.1971, and the schools administered by any public or private undertaking may be taken over by notification to be published in the official gazette with effect from the specified date, other types of schools not falling under any of the said categories can be taken over in accordance with the procedure laid down in sub-section (4). Sub-section (4) envisages a District Committee for each district, consisting of the Deputy Development Commissioner/Administrator, District Board as the Chairman and District Superintendent of Education, District Education Officer, District Inspector of Schools, Sub-divisional Education Officer and the Deputy Inspector of Schools of the concerned districts/sub-divisions as its members. The State Government is empowered to make changes in the composition of the Committee.
9. A conjoint reading of sub-sections (2) and (4) of Section 3 makes it clear that the aim and object, as indeed the only function, of the District Committee is to examine the feasibility of the take-over and determine the effective date of takeover. After the District Committee submits its report, it is for the State Govt. to take the final decision.
10. According to the petitioners once the District Committee comes to a favourable conclusion after examining the feasibility of the particular school, as in the present case, the school will be deemed to be taken over by the State Government and the only discretion left to the State to fix a particular date for such take-over.
11. In Ramnath Ram v. State of Bihar, 1995 (1) PLJR 359, a similar argument was made that the decision of the District Committee tantamounts to take-over of the school. The argument was rejected holding that District Committee is merely a recommending body and the power to examine the feasibility does not tanamount to the authority to take-over. The Court observed that in view of the words “shall be taken over by the State Government” occuring in Section 3(2) of the Act, it is difficult to hold that no further act is required to be performed by the State Government to complete the process of take-over. The absence of words “publication of notification in the official gazette” cannot be construed as abdication of power to the State Government or delegation of the power to the Committee. In Rajendra Prasad Sinha v. State of Bihar, 1991 (1) PLJR 412, it has been held that the Act does not contain any provision for take over of the elementary schools other than those mentioned in sub-sections (1), (2) and (3) of Section 3. The power of the State Government in the matter of take-over of school is an executive power which can be exercised by the Government alone. It is not competent for the courts including the High Court in exercise of its writ jurisdiction to direct take over of the school. The High Court can at best, in an appropriate case, merely direct the Government to re-consider the matter.
12. In the present case it would appear that the matter regarding take over of the school was considered by the Director of Primary Education on the basis of representation which the petitioners had filed in the light of the order of this Court in CWJC No. 4228 of 1989. The Director came to the conclusion, inter alia, that the school does not possess its own land and building and it is not possible to ascertain the date of its establishment. In view of my conclusion that the decision of the District Committee is merely recommendatory in nature and not binding on the State Government, if the competent authority of the Government has taken an adverse view of the matter, regarding the feasibility of the proposal of take-over, it would not be possible for this Court to issue any direction to take over the school merely on the basis of the decision of the District Committee, or to issue any direction for payment of salary and other consequential benefits to the petitioners. In State of Bihar v. Sri Chandradip Rai (supra) the Supreme Court has categorically held that where the school has not been taken over by notification under Section 3 of the Act, the consequences set forth under Section 4(2) of the Act regarding payment of salary and other conditions of service of teachers and non-teaching staff of the school do not ensue, and the persons concerned therefore, are not entitled to such benefits.
13. The High Court in such a case would not be justified in issuing writ of mandamus directing the State Government to take steps either for proper management of the school or for payment of the salary to them.
14. The claim of the petitioners for take-over of the school has been rejected by reasoned order, the order not being without jurisdiction and the ground of rejection not being extraneous, I find myself unable to make any positive order in their favour.
15. In these premises, I would dismiss this writ petition but without any order as to costs.
16. Aftab Alam, J.:— I agree.
17. Radha Mohan Prasad, J.:— I agree.
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