The State Government is not entitled to refuse to take the services of teachers who were validly appointed in a school before it was taken over by the State Government, on the ground that they were not recognized teachers or that they were working on unsanctioned posts.

S.B. Sinha, J.

This writ application involves a question with regard to the interpretation of sub-section (2) of section 4 read with section 3 of the Bihar Non-Government Elementary Schools (Taking over of Management and Control) Act, 1976, hereinafter called and refereed to as "1976 Act".

2. The facts of the case lie in a very narrow compass and are not much in dispute. The petitioners were appointed as teachers in untrained matric scale of pay on 1.4.1974 and 1.1.1975, respectively, in the Middle School, Dewarika Kothi, Anchal Paru, in the district of Muzaffarpur. It is asserted that the said school is in existence from before 1949. It is an admitted fact that the aforementioned school was taken over in terms of the provisions of the said Act by a notification dated 26.1.1975. It is also admitted that the names of the petitioners were not included in the list of the teachers while the said school was taken over allegedly on the ground that the petitioners had been working against the unsanctioned post.

3. The various authorities including the Headmaster of the Said school and the District Superintendent of Education recommended that the services of the petitioners be regularised but allegedly the respondents refused to do so,

4. in the instant case, a counter-affidavit has been filed on behalf of the respondents, from a perusal whereof, it appears that, the petitioners names were not included in the list of the teachers at the time of taking over of the said school on two grounds, namely, (a) they were untrained matric teachers and (b) they had been working on unsanctioned posts.

5. The learned counsel appearing on behalf of the petitioners submitted that the phraseology used in sub-section (2) of section 4 of the 1976 Act is absolutely clear and, in that view of the matter, there is no reason as to why the impugned order should not be quashed and the petitioners be not paid their salaries.

Learned counsel further drew my attention to various documents from a perusal whereof it appears that the authorities of the State of Bihar also recommended the case of the petitioners for being absorbed in the said school. The learned counsel for the petitioner in support of his contention placed strong reliance upon Chandra Kumar Chakarvarty v. the Deputy Director of School Education reported in 1979 B.B.C.J. 378; Krishna Prasad v. State of Bihar and others reported in 1981 B.B.C.J. 387 : 1982 PLJR 214; Smt. Maya Raman v. the State of Bihar and others reported in 1984 B.L.J. 651 : A.I.R. 1984 Patna 99 : 1984 PLJR 328; as also an unreported decision of this Court in Anand Kumari v. State of Bihar and others (Letter Patent Appeal No. 64 of 1983) disposed of on the 11th January, 1985.

In the aforementioned decisions of this Court, it has been held that, if any person had been working as a teacher at the time when the school was taken over, he automatically becomes an employee of the State of Bihar in terms of the provisions of Sub-section (2) of section 4 of the 1976 Act.

6. The learned Advocate General appearing on behalf of the respondents, however, placed strong reliance upon a recent Division Bench judgment of this Court in Tarkeshwar Singh and others v. State of Bihar and others reported in 1987 P.L.J.R. 1017, wherein it has been held that the minimum qualification for appointment of a teacher in a primary school being matric trained in absence of the require qualification aforementioned, a teacher does not acquire any legal right to become an employee of the State of Bihar and further held that the word 'teacher' means a qualified teacher.

In the said judgment, the Division Bench have followed the Full Bench decision of this Court in Ram Ballabh Prasad Singh v. State of Bihar reported in 1986 P.L.J.R. 373 and another Division Bench decision of this Court in Om Prakash Choubey v. the Director (Secondary Education) cum Additional Secretary Government of Bihar, and another reported in 1985 P.L.J.R. 1110.

7. In the said decision, it has