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1996 Supreme(Pat) 725
HIGH COURT OF PATNA
Dr. J. N. Dubey & I. P. Singh, JJ.
Ram Babu Yadav & anr - Petitioners
Rajendra Thakur & ors.
vs.
The State of Bihar & other – Respondents
C.W.J.C. Nos. 1998 and 4372 of 1992
Decided On : 1.11.1996
For the petitioners: M/s Bal Bhadra Pd. Singh, Ashok Kuamr Sinha 3; M/s Chandra Shekhar, Tara Nath Jha,
For the State : M/s B.N. Singh, Ram Priya Sharan Singh.
Section 4(2) of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 provides for the automatic transfer of services of all teachers working in a school taken over by the State Government, regardless of their age or date of appointment.
Headnote:
BIHAR NON-GOVERNMENT ELEMENTARY SCHOOLS (TAKING OVER OF CONTROL) ACT, 1976 - SECTION 4(2) - Transfer of Services of Teachers to State Government - Automatic Transfer of Services of All Teachers, Including Those Appointed After 1.1.1971 or Below 18 Years of Age at the Time of Appointment.
Fact of the Case:
Petitioners, appointed as Assistant Teachers in non-government schools, challenged the State Government's refusal to treat them as government teachers and pay their salaries from the date of the schools' takeover under the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976. The petitioners argued that their services were automatically transferred to the State Government under Section 4(2) of the Act, irrespective of their age or date of appointment.
Finding of the Court:
The court held that Section 4(2) of the Act provides for the automatic transfer of services of all teachers working in a school taken over by the State Government, regardless of their age or date of appointment. The court found that the State Government's decision to exclude certain teachers from absorption into government service based on their age or date of appointment was contrary to the provisions of the Act.
Issues: 1. Whether the services of teachers appointed after 1.1.1971 or below 18 years of age at the time of appointment were automatically transferred to the State Government under Section 4(2) of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976. 2. Whether the State Government's decision to exclude certain teachers from absorption into government service based on their age or date of appointment was valid.
Ratio Decidendi: The court relied on the plain language of Section 4(2) of the Act, which states that the services of every teacher in a school taken over by the State Government shall be deemed to have been transferred and that they shall continue to hold office by the same tenure, remuneration, and terms and conditions of service as they held before the takeover. The court held that this provision does not make any distinction based on the age or date of appointment of teachers and that the State Government's decision to exclude certain teachers from absorption into government service was therefore contrary to the Act.
Final Decision: The court allowed both writ petitions, quashed the State Government's order excluding the petitioners from absorption into government service, and directed the State Government to treat the petitioners as Assistant Teachers of the State Government with effect from the date of taking over of their respective schools and pay them salary in accordance with law.
Dr. J. N. Dubey, J. - Petitioners have filed these writ petitions for issuing a writ of mandamus commanding the respondents to treat them teachers of the State Government and pay them salary from the date of taking over of their schools under the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (for short 'the Act').
2. The claim of the petitioners in C.W.J.C. No. 1998 of 1992 is that they were appointed as Assistant Teachers in the Bindeshwari Prasad Yadav Middle School, Mangashihol, Marana, District Supaul (Saharsa) (for short 'the school') by its Managing Committee on 21.11.1971 and 30.11.1972 respectively in the pay scale of untrained matric teachers. The school was taken over by the State Government under Section 3(2) of the Act on 12.1.1981. While five assistant untrained matric teachers of the school, who were appointed prior to 1.1.1971, were given regular pay scale of untrained teachers, the petitioners were sent for training in the Primary Teachers Training College, Sakhasohan, Manhorra, Madhepura. After completing their training on 31.5.1983, they joined the school in the forenoon of 2.6.1983 and since then they have been continuously working there as assistant teachers. The Headmaster of the school after accepting their joining report referred the matter to the District Superintendent of Education, Saharasa through the Deputy Inspector of Schools, Supaul for payment of their salary. In the meantime, the result of teacher training examination of the petitioners was declared in April, 1984 in which both the petitioners had succeeded. On 31.12.1988, the District Superintendent of Education, Saharsa informed the petitioners that the matter of payment of their salary has been referred to the State Government for necessary instructions. However, no final decision was taken by the State Government in this regard, with the result the petitioners are not getting any salary. The petitioners made several representations to the District Superintendent of Education, Saharsa and other higher authorities of the Education Department, but with no result.
3. On the other hand, the claim of the petitioners in C.W.J.C. No. 1372 of 1992 is that they have been working as Assistant Teachers in Shri Neelkanth Balika Madhya Vidyalaya, Chainpur, Saharsa (for short 'the school') since 1970. They were appointed by the Managing Committee of the school against sanctioned posts strictly in accordance with law. They were found working in the school by various education authorities during their inspection. The names of the petitioners also figured in the inspection reports dated 25.1.1978 of the Block Extention Officer and 13.9.1979 of the Sub-divisional Education Officer. On 21.8.1982, the Deputy Development Officer-cum-Chairman, Zila Shiksha Ayojan Samiti, Saharsa sent a letter to the Director, Primary Education, Bihar recommending the taking over of the school under Section 3(2) of the Act. The State Government accepted the recommendation and issued a notification under Section 3(2) of the Act to take over the school. Although, as stated above, the petitioners have been continuously working as Assistant Teachers in the School since 1970 and their names figured in all the inspection reports made from time to time, they were not included in the list of teachers of the school in the notification issued on 16.3.1983. They made representation to the Education Commissioner-Cum-Secretary for including their names in the list of teachers of the school. On 1.6.1983, the petitioners were sent for training treating them to be teachers of the school. However, it was further stated in the said notification that after training the Zila Shiksha Ayogan Samiti will consider the case of the petitioners for appointment on the post of Assistant Teachers along with others on the vacant posts. The petitioners filed CWJC No. 2835 of 1983 in this Court, which was disposed of on 16.12.1991 with a direction to the petitioners to file a re
