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PATNA HIGH COURT
S.Ali Ahmad, U.P.Singh and G.C.Bharuka JJ.
Ram Odar Jha And Ors., Ram Krishna Singh, Lalita Prasad Pandey And Hari Tiwari
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 4150 of 1987 ;
Decided On : OCTOBER 08, 1991
(Per U.P. Singh, J .)-Sec 9 is surplus is difficult to be accepted-See 9 is not a rule and is an enabling provision-by no mean sec 4 (3) can be treated as a rule making power and the only rule making power under the Act is sec. 15-it has to be held that the rule, as framed in exercise of powers conferred by sec 9 was invalid and the validity of the rules framed u/s 9 of the Act as contended has to be rejected AIR 1959 SC 249, 1974 BBCJ 50, AIR 1979 SC 1140 ref. (Paras 8, 9, 10 & 11)
(Per G. C. Bharuka, J.)-Sec 4 (3) permits alteration in service conditions by the State Govt. in the prescribed manner for the existing staff of taken over secondary schools -See 9 empowers the State Govt. to deter- mine service conditions and see 9 can not be said to be surplus age because in its absence it will be difficult to trace out any specific provision under the Act for lying down service conditions-the mention of wrong provision in the preamble of the Rules does not invalidate it if there is other enabling statutory provisions which call support it-AIR 1964 SC 1329 & AIR 1983 SC 537 rel. on. (Paras 2 &3)
Bihar Non-Governmenta Secondary Schools (Taking over management and Control) Act, 1981, see 15 (Z)-(Per S. Ali Ahmad, J.)-Framing of rules-Sub-see (2) providing for laying down the rules framed before the two houses of the legislature-Last part of the Sub-sec (2) providing that the modification of the rules or its annulment shall not affect the validity of anything done previously-the legislature, therefore, has expressed its intention that the enforcement of rules is after the affirmative resolution by two houses-Sec 15 (2) provided a negative resolution of annulment or modification of rules-the laying provision is directory in nature and is certainly not mandatory as it came into operation as soon as they were notified and actions taken under the Rules were also saved-even directory provisions in the statute have to be vecticulosly followed-respondents directed to lay the rules in two houses as soon as possible AIR. 1979 SC 1149, AIR 1956 Andhra 129, AIR 1966 S. C. 385 rel. on, AIR 1980 SC 1352 ref. (Para 10)
(Per U. P. Singh, J.)-in the facts of the present case there is no escape from the conclusion that the rules were not placed before either House of the Legislature ill terms of see 15-On a plain reading of the provision it has to be held that before a rule is to be laid before each House 4 the State Legislature (i) it must be a rule made u/s 15 (2), (ii) a rule contemplated to be Laid must be a valid rule and (iii) such rule shall have to be laid before each House of the legislature-where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all-the intention of the legislature is obvious otherwise entire object of control over its delagatee will be nullified and meaningless-there is no explanation or any reason given as to why the impugned rules were not laid before both Houses of the legislature-construing the provisions contained in see 15 (2), rules framed owe their efficacy to the tacit assent of the Legislative Assembly itself-the expression in last few lines of sec 15 (2) can not be taken into aid in upholding the contention that the provision is directory-AIR 1932 P.C. 253 (2), AIR 1982 SC 1407,1974 BBCJ 15, AIR 1979 SC 1149, AIR 1966 SC 385, AIR 1956 Andhra 129 dist. (Paras 16, 17, 18, 24, 25 & 27)
(Per G. C. Bharuka, J.)-Non-compliance with the requirement of the laying clause has always to be judged only for the purpose as to whether the subordinate legislation or any provision thereof as made by the delegatee has come into force or not-laying clause in question is merely directory in nature and its non-compliance or part compliance does not in any way entail upon either the validity of the Rules or enforcibility thereof-information sent by the Deputy Secretary of the Legislative Council can be taken into account as technical rules of Evidence Act does not apply to the writ proceedings-Rules in fact, were placed before both the Houses of the Legislature as required by the laying clause contained in the section -AIR 1969 SC 504 ref. (Paras 5. 6, 7, 9 & 11)
Interpretation of Statutes-(Per S. Ali Ahmad, J.)-Provision laying down of Rules before the two Houses of the State Legislature -Mandatory or directory -the word "shall" generally speaking is used where the intention is mandatory but this is not the determining factor alone and will depend upon the intention of the legislature which will have to be gathered court by carefully scrutinizing the Scope of particular piece.
(Para 10)
S.Ali Ahmad, U.P.Singh and G.C.Bharuka JJ.
1. These four writ applications have been heard together and are being disposed of by this common judgment.
2. Irrespective of the prayers made in the applications, the only question that has been agitated in support of the applications is that the Bihar Rationalised High Schools Service Condition Rules, 1983 (for short the Rules) is ultra vires to the provision of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act (for short the Act) as the same were not placed before the two Houses of the Legislature for fourteen days continuously as required under Sec. 15 (2) of the Act.
3. The vires of the Rules came under attack before a Division Bench of this Court in the case of Mateshwar Singh and Ors. V/s. The State of Bihar 1985 PLJR 416. It appears that the accepted position before the Division Bench was that the Rules were laid before the Legislative Assembly for a few days but it was never laid before the Legislative Council. It was thus accepted that the provisions as envisaged under Sec. 15 (2) of the Act regarding laying of the Rules in the two Houses of Legislature were not complied with. The Rules, however, were held to be valid by the Bench in the aforesaid case on the ground that the State, besides Sec. 15 of the Act, had jurisdiction to determine the service condition of teachers and it was in exercise of this power that the Rules were framed. C.W.J.C. No. 1138 of 1988 was taken up for hearing by a Division Bench consisting of U.P. Singh and B. Prasad, JJ. The learned Judges constituting the Bench doubted the view taken in the case of Mateshwar Singh (supra) that the rules were framed under Sec. 9 of the Act and as such, it was not necessary to lay the same before the two Houses of Legislature.
4. It will be convenient to have the relevant provisions of the Act in mind before I proceed to consider the argument advanced by learned Counsels for the parties.
5. The Act provides for taking over of management and control of me non-government secondary schools by the State Government for improvement, better organisation and development of education in the State of Bihar. Non-Government secondary schools were those schools, which were recognised as such by the Bihar Secondary Education Board constituted under the Bihar Education Secondary Act, 1976 and the Bihar Secondary Education Board (Second Amendment) Ordinance, 1980. All non-Government secondary schools were deemed to have been taken over by the State Government with effect from 2nd of October, 1980 under Sec. 3 of the Act. Sec. 4 of the Act provides for the consequences of taking over management and control of such schools. Sub-sections (2) and (3) of Sec. 4 of the Act provides that with effect from the date of taking over the services of every head-master, teacher and other employees of the schools were deemed to have been transferred to the State Government and they became employees of the State Government. Other terms and conditions of their services continued to be the same as it were before taking over until any alteration was made therein by the State Government in the prescribed manner. It will be advantageous to quote Sub-sections (2) and (3) of Sec. 4 of the Act which read as follows:
(2) The services of every Headmaster, teacher or other employees of the school taken over the State Government, shall be deemed to have been transferred to the State Government with effect from the date of taking over of the school and become employees of the State Government with such designation as the State Government may determine.
(3) The age of superannuation of Headmasters, teachers and other employees of the schools taken over by the State Government shall be 58 years. The other terms and conditions of their services shall continue to be the same as it was before taking over the management and control of the school until any alteration is made therein by the State Government in the prescrib
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