Letters Patent Appeal No. 565 of 2013 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.565 of 2013 ====================================================== 1. Vijay Verma Son Of Sri Siya Ram Verma Resident Of Village Maharas, P.S. Salkhua, District Saharsa At Present Assistant Teacher, Kanya Madhya Vidyalaya, Dumara, Panihar Kashimpur, Anchal- Nauhatta Dist.- Saharsa 2. Vijay Verma Son Of Sri Siya Ram Verma Resident Of Village Maharas, P.S. Salkhua, District Saharsa At Present Assistant Teacher, Kanya Madhya Vidyalaya, Dumara, Panihar Kashimpur, Anchal- Nauhatta Dist.- Saharsa 3. Amita Kumari Sinha Wife Of Sri Khagendra Resident Of C/O Sri Vaidehi Saran Prasad, Village Khurshan P.S. Salkhua (O.P.) Banmatahari, District Saharsa At Present Assistant Teacher, Kanya Madhya Vidyalaya Tariyama, Anchal Simiri Bakhtiyarpur, Saharsa 4. Amita Kumari Sinha Wife Of Sri Khagendra Resident Of C/O Sri Vaidehi Saran Prasad, Village Khurshan P.S. Salkhua (O.P.) Banmatahari, District Saharsa At Present Assistant Teacher, Kanya Madhya Vidyalaya Tariyama, Anchal Simiri Bakhtiyarpur, Saharsa Versus .... .... Appellant/s 1. The State Of Bihar 2. The State Of Bihar 3. The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 4. The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 5. The Director, Primary Education, Bihar, Patna 6. The Director, Primary Education, Bihar, Patna .... .... Respondent/s ====================================================== with Letters Patent Appeal No.853 of 2013 ====================================================== 1. Kanya Madhya Vidyalaya Tariyama Through Lal Bahadur Sah, President Kanya Madhya Vidyalaya, Tariyama, Anchal Simiri Bakhtiyarpur, Saharsa Son Of Late Jageshwar Sah, R/O Village Tariyama, P.S. Simari Bakhtiyarpur, District- Saharsa 2. Kanya Madhya Vidyalaya, Dumara Paruhar, Kashimpur Through Shiv Nandan Yadav, Secretary Kanya Madhya Vidyalaya, Dumara Paruhar, Kashimpur Anchal Navhutta Saharsa, Son Of Late Hari Dutt Yadav, R/O Village Kashimpur, P.S. Navhutta, District- Saharsa Versus 1. The State Of Bihar, Through The Chief Secretary, Govt. Of Bihar, Patna 2. The Principle Secretary, Human Resources Development Department, Government Of Bihar, Patna 3. The Director, Primary Education, Bihar, Patna .... .... Appellant/s .... .... Respondent/s ====================================================== Patna High Court LPA No.565 of 2013 (3) dt.25-10-2013 2
Legal Reasoning
Appearance : (In LPA No.565 of 2013) For the Appellant/s : Mr. Amit Shankar For the Respondent/s : Mr. Madhuresh Prasad (In LPA No.853 of 2013) For the Appellant/s : Mr. Amit Shankar For the Respondent/s : Mr. Dinbandhu Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 25-10-2013 Heard learned Senior Counsel for the appellants and the respondents in both the appeals. The present appeals arise from a common order dated 6.3.2013 in C.W.J.C. No.15582/09 and C.W.J.C. No.6582/10. The learned Single Judge opined that any deliberations made by the Cabinet or noting in the file, unless fructified as a final order/decision leading to the issuance of a formal notification, cannot furnish a cause of action. Learned Senior Counsel for the appellants submitted that in 1973 the State Government decided to take over 54000 Primary Schools. An assurance in this regard was given by the Chief Minister on the Floor of the Legislative Assembly on 8.6.1972. But only 53,500 schools were taken over. Of the 500 left out schools 110 were taken over in 1994. Again 390 schools were left. The appellants fall in that category of left out schools. The Advocate General on an opinion sought by the authorities had opined on 1.10.1997 that it was violative of Article-14 of the Constitution not to Patna High Court LPA No.565 of 2013 (3) dt.25-10-2013 3 take over these left over schools. A Cabinet proposal dated 16.1.1990 was also prepared for such take over. When final decision was not being taken, C.W.J.C. No.11774/04 was filed by the “Bihar Arajkiya Prathmik Shikshak Sangharsh Samiti” in the form of a Public Interest Litigation. It was disposed to file a detailed complaint before a competent authority to be considered in accordance with law. It was wrongly rejected by an order dated 25.9.2006 without any material why the assurance of the Chief Minister and the opinion of the Advocate General was not being complied with and accepted. The learned Single Judge therefore erred in not adjudicating the merits of the order dated 25.9.2006. That order, in any event, even on merits, does not spell out any cogent and justifiable germane reasons to leave out these 390 schools originally forming part of the 54,000 schools decided to be taken over. Learned counsel for the State has supported the impugned order urging that it merits no interference. We have considered the submissions on behalf of the parties. Whether a private school is to be taken over or not including the review of any earlier decision in this regard are executive policy matters. It is only if any statutory provisions are violated while taking over, mala fide is alleged, arbitrariness demonstrated including discrimination, can the Court interfere. Patna High Court LPA No.565 of 2013 (3) dt.25-10-2013 4 An assurance given by the Chief Minister on the Floor of the Legislative Assembly to do or not to do something or a particular course of action does not create a legal right in any citizen for its enforcement and no mandamus can be issued unless and until such assurance fructifies in a formal government notification/order. In our opinion, the learned Single Judge has rightly opined that any file notings made for consideration by the Cabinet also cannot vest a cause of action. File notings, as is well known, are but the process of thinking and discussion which ultimately has to culminate in a final decision for issuance of a formal order or notification by the State Government. C.W.J.C. No.11774/04 was not entertained as a Public Interest Litigation. The Court was informed that the order dated 16.1.1990 was a Cabinet decision for take over, when on reading of that document it is revealed that it was only a file noting for consideration by the Cabinet and not a formal decision. No explanation is forthcoming that if a particular school or a teacher of a particular school falling in the category of 390 was aggrieved, why resort to appropriate legal proceedings were not taken when 53,500 schools only were taken over in 1973. The next opportunity came when 110 schools from the left over 500 schools were taken over in 1984. Two opportunities were therefore allowed to pass away Patna High Court LPA No.565 of 2013 (3) dt.25-10-2013 5 without any explanation. Any opinion given by the Advocate General to the State Government falls in the category of a privileged communication and, in any event, does not bind the State Government. No mandamus can be issued for enforcement of the opinion rendered by the Advocate General. In pursuance of the order passed on 17.4.2006 in C.W.J.C. No.11774/04, the authorities passed final orders on 25.9.2006 declining to take over the left over 390 schools. The order states that after consideration it was not considered conducive to the society and education to take over the schools. Teachers who are not fully qualified, efficient and eligible obtain back door entry into government service under such circumstances. The avowed government policy for reservation is also affected. It was in the interest of education in the State not to take over the schools. On the contrary, as the need for education grows, the Government itself shall open schools in accordance with law and reservation policies. In our opinion, these are purely executive policy decisions and we do not consider it appropriate exercise of jurisdiction to interfere with the same by issuance of any directions for take over of the schools in question. Moreover, we do not find that the writ application laid out any challenge to the order dated 25.9.2006 seeking quashing/setting aside Patna High Court LPA No.565 of 2013 (3) dt.25-10-2013 6 of the same. In conclusion, we find no reason to interfere with the order under appeal. The appeals are dismissed. (Navin Sinha, J) (Shailesh Kumar Sinha, J) K.C.jha/-