Smt. Priyambada v. The State of Bihar through Commissioner and Secretary, Primary and Adult Education

For the Respondents : Mr. Utsav Kumar, AC to SC 10. ====================================================== PRESENT: HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 9 28-01-2013 Heard learned counsel for the petitioners and learned counsel for the respondents-State of Bihar and its authorities.

2. This writ petition has been filed by the petitioners Patna High Court CWJC No.8987 of 2005 (9) dt.28-01-2013 - 2 - for directing the respondents to consider taking over control of Middle School, Dharampur the district of Vaishali (hereinafter referred to as ‘the School’ for the sake of brevity) along with teaching and non-teaching employees under the provision of Section 3(4) of the Bihar Non-Government Elementary School (Taking Over of Control) Act, 1976 (hereinafter referred to as ‘the Act’ for the sake of brevity) in view of the decision of the District Education Committee dated

31.07.1987 (Annexure-3 series) which was the duly authorized body as per the Act.

3. The facts which are not in dispute with respect to subject matter of the case are that the school in question was established on 01.11.1970 the village whereafter on

07.10.1972 the Sub-Divisional Education Officer gave recognition to the school with effect from 01.01.1972. Learned counsel for the respondents submits that the said recognition was only provisional and conditional, but it is not in dispute that the whatever the nature of the recognition might have been, such recognition continued and in the meantime the Act of 1976 came into force with effect from 06.02.1976 the date on which it was published in the Bihar Gazette (Extraordinary).

4. It is the specific case of the petitioners that as per the aforesaid provision of the Act a District Committee was Patna High Court CWJC No.8987 of 2005 (9) dt.28-01-2013 - 3 - formed in all the districts, including the District of Vailshali to examine the feasibility of taking over Non-Government Elementary Schools by the State Government and which consisted of members as per the said provision. The said District Education Committee of Vaishali called for the reports from the various authorities, including the inspection report and from the said reports, documents and inspection the school in question was found fit to be taken over and accordingly feasibility report dated 31.01.1987 was issued by Committee and the said report was finally sent by the Chairman of the Committee to the then Director, Primary Education, Govt. of Bihar on the same date. The grievance of the petitioners is that no step was taken by the authorities and even the representation of the Headmaster of the School remained unheeded and unconsidered.

5. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioners and submits that Non-Government Elementary Schools were taken over under the Bihar Non- Government Elementary School (Taking Over of Control) Act,

1976. As per Rue 3(1) of the said Act, Elementary Schools managed by the District Board/ Zila Parishad/ Municipal Board and the Patna Municipal Corporation and those opened under Patna High Court CWJC No.8987 of 2005 (9) dt.28-01-2013 - 4 - the Expansion and Improvement scheme would be deemed to have been taken over with effect from 01.01.1971. The school claimed by the petitioners was not among the category of that school and thus claim of the petitioners did not have any legal basis and it is fit to be rejected.

6. Learned counsel for the respondents also submits that it is apparent from the order of recognition of the Sub- Divisional Education Officer dated 07.10.1972 recognition granted the school was provisional and conditional and hence the contention of the petitioners that the school was recognized is not correct and the same was denied.

7. Learned counsel for the respondents avers that the State Government vide its Cabinet decision dated 30.06.1993 decided not to take over any fresh school and the State Government vide its successive press communiqué in the year 1999-2001 and 2003 clarified that there was no case of taking over of schools under consideration and for that purpose the respondents have annexed Notification dated 23.08.1993 as Annexure-A to the counter affidavit as well as notices of subsequent period as Annexure-B thereto. Hence, he submits that the claim of the petitioners is absolutely frivolous and misconceived and is fit to be dismissed.

8. Considering the averments made by learned Patna High Court CWJC No.8987 of 2005 (9) dt.28-01-2013 - 5 - counsel for the parties it is quite apparent that the establishment of the school was in the year 1970 and recognition granted to it was in the year 1972 by the Sub-Divisional Education Officer and its continuation in any form at least till the decision of the District Committee is not in dispute. It is also not in dispute that in the year 1973 a decision was taken by the State Government that elementary schools of the State except minority schools shall be Government Elementary Schools and following the said decision, the Act of 1976 was brought into existence, Section 3 of which reads as follows:-

3. Taking over of Non-Government Elementary Schools by 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 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/ Patna High Court CWJC No.8987 of 2005 (9) dt.28-01-2013 - 6 - Administrator, District Board-Chairman. (ii) District Superintendent of Education- Secretary. Members (iii) District Education Officer, (iv) District Inspector of Schools, (v) Subdivisional Education Officer of concerned subdivision, 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.

9. From a bare perusal of the said provision and the Scheme of the Act as well as inclusion of the higher authorities as office bearers and the members of the District Education Committee it is quite apparent that the final authority for considering the feasibility of taking over of such schools by the State Government was the District Education Committee and its view was to be accepted by the Government immediately and there is no provision at all to show that any other authority, however high he may be, was empowered to take any decision against the view of the Committee.

10. Furthermore from the counter affidavit of the respondents it is quite apparent that the said fact with regard to formation of the Committee and its views had not been denied by the respondents. Hence, the only option left for the authority concerned, namely the then Director Primary Education, Govt. of Bihar was to take immediate steps in furtherance to the Patna High Court CWJC No.8987 of 2005 (9) dt.28-01-2013 - 7 - recommendation of the Committee without any delay. Any delay caused by the concerned authority was not only against the spirit of the Act, rather it was also a fraud upon the law by keeping the matter pending for several years altogether and then coming up with a decision in 1993 not to take over any such school.

11. Had recommendation of the District Committee of January, 1987 being followed as per the provision of law immediately, there would have been no occasion for any such difficulty, but in spite of repeated representations by the Headmaster of the School, the matter appears to have been kept pending for reasons best known to the authorities. The provisions of law and the Act of the Government cannot be legally interpreted in such manner. Furthermore, in the Notification dated 23.08.1993 it was noted that any such decision taken prior to 16.01.1990 was directed to be considered for being set aside. Nothing has been brought on record by the respondents that till date any such step has been taken or any order has been passed by the authorities concerned for setting aside the decision of the District Education Committee.

12. In the aforesaid facts and circumstances, the decision of the District Committee still stands good and Patna High Court CWJC No.8987 of 2005 (9) dt.28-01-2013 - 8 - effective and the authorities were bound to act according to the same and similarly today also they are bound to comply the same irrespective of any decision taken by them which is against tenor and spirit of the special enactment. Furthermore, the aforesaid enactment was a beneficial enactment for the education etc. of the children of village and hence it cannot be ignored in such a cursory and ignorant manner.

13. In the said circumstances, this writ petition is allowed and the authorities concerned are directed immediately comply the decision of the District Education Committee dated 31.01.1987 and take over the control of the Middle School, Dharampur, Vaishali along with its teaching and non-teaching employees as per the provision of Section 4 of the Act. (S.N. Hussain, J) Sunil/-