IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11835 of 2007
1. YOGA NAND JHA, S/O LATE SHIVANAND JHA, RESIDENT OF VILLAGE - SAHBAJPUR, P.S. JOGBANI, DISTRICT -ARARIA. GENERAL SECRETARY OF BIHAR ARAJKIYA PRATHAMIC SHIKSHAK SANGHARSH SAMMITTI, PRESENTLY LIVING AT UMESH BHAWAN, BALDEV BHAWAN PATH, MOHANPUR PUNAICHAK, P.S. SHASTRI NAGAR, DISTRICT- PATNA.
2. AMBIKA PD. SINHA, S/O LATE YAMUNA PRASAD, RESIDENT OF VILLAGE - SOBHAN, P.S. CHA NDI, DISTRICT - NALANDA AT PRESENT VIDE PRESENT VICE PRESIDENT BIHAR ARAJKIYA PRATHAMIC SHIKSHAK SANGHARSH SAMMITTI, PRESENTLY LIVING AT UMESH BHAWAN, BALDEV BHAWAN PATH, MOHANPUR PUNAICHAK, P.S. SHASTRI NAGAR, DISTRICT- PATNA.
3. KUMAR ANAND MOHAN, S/O SRI KRISHNA DEV SINGH, RESIDENT OF VILLAGE - PARUT, P.S. MAKHDUMPUR, DISTRICT - JEHANABAD, AT PRESENT STATE REPRESENTATIVE OF MAGADH ZONE, BIHAR ARAJKIYA PRATHAMIC SHIKSHAK SANGHARSH SAMMITTI, PRESENTLY LIVING AT UMESH BHAWAN, BALDEV BHAWAN PATH, MOHANPUR PUNAICHAK, P.S. SHASTRI NAGAR, DISTRICT- PATNA
1. THE STATE OF BIHAR THROUGH THE SECRETARY -CUM- COMMISSIONER, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, NEW SECRETARIAT, PATNA.
2. THE DIRECTOR OF PRIMARY EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, NEW SECRETARIAT, PATNA. ......... RESPONDENTS.
CWJC No.4203 of 2007
BIHAR ARAJKIYA PRATHMIC SHIKSHAK SANGHARSH SAMITI THROUGH RAM SEWAK MAHTO, SON OF LATE RAM LAKHAN MAHTO, PRESIDENT OF EAST BARIARPUR, P.O. TARA BARIARPUR, P.S. KHODAWANTPUR, DISTRICT - BEGUSARAI, AT PRESENT RESIDING AT PURANI POST OFFICE, LANE PUNAICHAK, PATNA -22.
1. THE STATE OF BIHAR.
2. THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIATE, PATNA.
3. THE DIRECTOR, PRIMARY EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIATE, PATNA.
4. THE DEPUTY DIRECTOR, PRIMARY EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIATE, PATNA.
5. THE CHAIRMAN/SECRETARY COMMON SCHOOL SYSTEM COMMISSION, 37, B.S.I.D.C. COLONY RAMESHWAR DAYAL PATH OPPOSITE A.N. COLLEGE, PATNA -13.
For the Petitioners : - Mr. Awadh Kumar Mishra, Advocate Mr. Vijay Kumar, Advocate
Mr. Arun Kumar Mandal, Advocate
Mr. C.B. Upadhyay, Avocate
For the Intervenor : - Mr. Aund Kumar Tiwari, Advocate (in both the cases).
For the State : - Mr. Sanjay Kumar, SC 12 Mr. Ajay Kumar, Advocate, AC to AAG-8 -----------
09/ 21.06.2011 Two writ applications, for similar relief, in representative capacity have been filed by the petitioners. Writ-petitioners are claiming to be the Secretary and office bearers of same organization, namely, Bihar Arajkiya Prathamic Shishak Sangharsh Samiti, and have claimed to be looking after the interest of teaching and non-teaching employees of 390 Schools, recognized for taking over by the Government under the provisions of Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976.
Prayer of the petitioners in both the writ applications is for quashing of the order contained in Memo No. 8/B 3-280/89 - 1645 dated 25.09.2006 issued by the Commissioner -cum- Secretary, Human Resources Development Department, Govt. of Bihar, rejecting the prayer of the petitioners for payment of salary to the teaching and non-teaching employees working in left out 390 recognized Non-government Elementary/Primary/Middle Schools.
The Govt. of Bihar vide Notification No. 763 dated 9.2.1973 resolved to take over Non-government Elementary/Primary/Middle Schools in Bihar with effect from 1.1.1971. The Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 (hereinafter referred as 'Act') was enacted to provide for the taking over of Non-government Elementary Schools under the State control for better administration of such Schools. Schools established and administered by the District Board and Zila Parishad under the provisions of Bihar and Orissa Local Self Government Act, 1925, the Schools established and administered by the Municipal Board under the provisions of Bihar and Orissa Municipal Act, 1922, Schools established and administered by the Patna Municipal Corporation Act, 1951, were defined as Elementary Schools Under Section 2(a) of the Act. Section 3(1) of the Act provided for take over of all such Schools under Section 2(a) of the Act. Apart from these Schools other Elementary Schools which were administered by any public or private undertaking were also to be taken over. Section 3 of the Act related to taking over of Non- 4
Government Elementary Schools. Section 3 sub-section (4) provided that District Committee will be constituted in each district which shall examine the feasibility of the taking over of Schools other than the Schools established and administered by the Board, Corporation and on the basis of the report submitted by the such committee the Government will take over the management and control of such Schools. Petitioners' case is that altogether 54,000 Primary/Middle Schools were identified for the purposes of taking over and in order to meet necessary expenses in taking over the management of these Schools a fund of Rs.11.50 crores was also allocated. Bihar Non-government Elementary Schools (Taking over of Contract) Act, 1976 came in operation on 6.2.1976. The District level committee was constituted for conducting an enquiry regarding feasibility of the Schools for taking over purposes under the provisions of 1976 Act. Out of 54,000 Schools, 53,500 Primary/Middle Schools were taken over by the Govt. vide Resolution No. 1167 dated 2.5.1980. 500 Schools were left over, though there was no specific reason for 5
that. Subsequently, in the year 1984, out of 500 left over Schools, 110 Schools were also taken over. Only 390 Schools could not be taken over for the reason that management of these Schools at the relevant time could not resolve for handing over the management of their Schools unconditionally to the State Govt. with effect from a particular date. The management of these Schools also, later on, decided to hand over management of 390 Schools and the decision was communicated to the District Superintendent of Education of the concerned districts. The Education Department, Govt. of Bihar in the year 1987 sought for legal opinion from Law Department regarding taking over of the management of remaining 390 recognized Non-government Elementary/Primary/Middle Schools. The opinion of the then Advocate General was submitted on 1.10.1987, which was in favour of the taking over of 390 Schools as there was no obvious reason for not taking over these 390 Schools, when they were similar to 110 Schools taken over by the Govt. in pursuance of its' resolution dated 2.5.1980. Petitioners' case is that so far 390 Schools are 6
concerned vide Cabinet decision dated 16.1.1990 the matter relating to its taking over was finalized. However, the option had been given to the Cabinet Ministers for furnishing list of other similar Schools for the purposes of taking of their management. The Cabinet Ministers, subsequently, furnished list of 982 Schools. In the subsequent Cabinet meeting dated 23.8.1993 the proposal for taking over of additional 982 Schools rejected, as the Govt. was not in a position to take over the additional financial burden. Since, 390 School's decision already taken in the Cabinet meeting dated 16.1.1990, for which fund had already been allocated and in each year, annually budgetary allocations were being made for these Schools, as such there was no reason for not allowing financial benefits to these Schools, which were already decided to be undertaken by the Govt.
However, counter affidavit filed on behalf of the State indicates that the emphasis of petitioners on total number of 54,000 Schools is in correct. Total number of 54000 Schools was not an exact number but an anticipated number of Primary/Middle Schools, 7
management of which could have been taken over by the Govt. after receiving feasibility record. The case of 390 Schools for being taken over by the State Govt. has already been rejected by the Govt. in its Cabinet decision dated 23.8.1993 and notification no. 2267 dated 23.8.1993 has also been issued dismissing the claim of total 982 Schools including 390 Schools. Much stress is being given by the petitioners on the Cabinet decision dated 16.1.1990. The agenda relating to taking over of management of 390 schools was before the Cabinet at Column No. 26. After discussing the issue at length the Cabinet unanimously approved the agenda relating to taking over of 390 Schools. Besides 390 Schools, Cabinet Ministers were also asked to give list of Schools which could be taken over by the State, list of 982 Schools were given by the Cabinet Ministers and total number of Schools became 390 + 982= 1372. The file relating to taking over the management of 1372 Schools started moving for final decision. At this juncture, the Governor in his speech while addressing joint session of both Houses also disclosed regarding taking over the management of 8
remaining 390 recognized Non-government Primary/Middle Schools. These 390 Schools were not part of those 982 Schools, list of which had been supplied by the Cabinet Ministers. However, due to change in administration a new Government came into power, the matter was reviewed. A sub-committee was constituted under the leadership of the then Water Resources Department Minister. In the meeting dated 30.4.1997 a decision was taken for taking over the management of these 390 Schools but in the Cabinet meeting dated 23.8.1993 the previous decision dated 16.1.1990 was reviewed. The claim of 982 Schools was rejected. The stand of the State Govt. is that 982 Schools includes 390 Schools, but the stand of the petitioners is that 390 Schools were never included in the list of 982 Schools.
The management of these Schools will be deemed to have been taken over by the State Govt. and the teachers; non-teaching employees of these Schools are entitled for all financial benefits which is available to Schools taken over by the Govt.
The issue relating to taking over the Schools 9
had earlier been considered in several decisions by this Hon'ble Court. The Full Bench has also discussed this issue and finding recorded in this decision is that none of the Schools can claim as a matter of right, that since feasibility report has been submitted by the District Committee in favour of taking over of such Schools, as such the State Govt. has no option but to take over the management of those Schools. There is no provision under the Act, relying on which any direction can be issued to the Govt. for taking over the management of the Schools. Counsel appearing for the State has placed reliance on decisions reported in 1995(1) PLJR 359, 1991 (1) PLJR 412 and 1999(3) PLJR 490. In all these three decisions it has been held that the State and its authority has to decide in the matters relating to taking over the Schools and the High Court have no competence, in exercise of its writ jurisdiction to direct, take over the management of the Schools. In case the State takes an adverse view, despite the feasibility report in favour of the take over of the management of Schools, Courts cannot interfere and direct for taking over of the Schools.
The State Govt. in its Cabinet decision dated 16.1.1990 was in favour of taking over the management of 390 Schools, but an option was also given to the Ministers to furnish list of non-government Schools. The Cabinet reconsidered the matter in its meeting held on 30.6.1993 and the decision dated 16.1.1990 was recalled, considering the Mushroom establishment of Non-government Elementary Schools after coming into force of 1976 Act. The State was also of the view that unfair practices are being engineered in the state in the name of taking over of Non-government Elementary Schools. On considering it was found that on account of taking over of privately managed Schools, the education system is being adversely affected. Teachers working in such Schools are unqualified, and ineligible persons are being appointed through back door in such Schools. Even reservation roasters are not followed and the SC/ST candidates are not adequately unrepresented in such Schools. The taking over is affecting the interest of society, the students and the Govt. on all these consideration decision was taken by the Govt. recalling the decision dated 16.1.1990.
In the backgrounds stated above and earlier decisions of the High Court on this issue, I find that no such direction can be issued to the State and its authorities for taking over of 390 Schools, whose interest is being represented by the petitioners. So far impugned order is concerned, that has been passed on consideration of all issues. For similar relief the petitioners had earlier filed C.W.J.C. No. 11774 of 2004. The petitioners were given liberty to represent their case before the concerned authority. The representations filed by the petitioners have been considered and in the light of Cabinet decision in 1993, I find that no direction can be issued for taking over all these Schools.
Accordingly, these two writ applications are dismissed.
DKS/ (Mridula Mishra, J.)