TaxTMI 
TaxTMI 
1986 (2) TMI 345
X X X X Extracts X X X X
X X X X Extracts X X X X
....C. 1946/84 (Baijnath Singh v. The State of Bihar and others) the petitioner began his service career with effect from 1st of March, 1969 as an Assistant Teacher in the Anugrah High School, Aurangabad. The Tapeshwari Kuer High School Dosma, in the district of Aurangabad, was started in the year 1980 and in pursuance to an advertisement made by the Managing Committee of the said school, the petitioner who was duly qualified was appointed (vide resolution of the Managing Committee No. 6 dated the 15th of March, 1980) as the Headmaster of the aforesaid school and joined the post on the 1st of April, 1980. Meanwhile the management of the school had already applied for permission to establish and such a permission was duly accorded by the Director-cum-Special Secretary, Department of Education (vide his memo No. 28348-51 dated 20th October, 1981). Later Special Board was constituted with the District Education Officer and one another officer to test the feasibility for the grant of permanent recognition to the school The said Board after inspection of the school and complying with the other formalities recommended for the permanent recognition thereof and (vide memo No. 11318-27 dated 3r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he district level officers, which were subsequently rectified, does not justify the perpetuation of such mistakes. The legal stand taken is that the only provision applicable in the petitioner's case is Section 3(3) of the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 (hereinafter to be referred to as the 'Act') and Section 4(2,) thereof has no relevance to the instant case. 5. These writ petitions had earlier come up for hearing before a Division Bench. Before the said Bench diametrically opposite stands were taken on behalf of the petitioners and the respondent State. On behalf of the respondent State a firm stand was taken against any automatic appointment of Headmaster on the take over of a school and it was contended that Section 3(3) of the Act alone governed the issue. On the other hand, the petitioners basically relied on Sub-section (2) of Section 4 of the Act to claim that the services of such a Headmaster shall be deemed to have been transferred to the State Government as such from the date of the taking over. Noticing a sharp cleavage of judicial opinion within this Court and the significance of the matter, the cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ries. Sub-section (1) deals with non-government secondary schools (other than the minority secondary schools based on religion or language, centrally sponsored, autonomous and proprietary secondary schools) which were already recognised permanently, provisionally or partially by the earlier statutes and the Bihar Secondary Education Board (hereinafter to be called the 'Board'). These schools by the mandate of Sub-section (1) are to be deemed to have been taken over by the State Government with effect from the 2nd of October, 1980. It is plain that these form a class apart. 7. The second category in Sub-sections (2) and (3) pertains to recognised minority, proprietary or autonomous schools, the managing committees whereof may voluntarily make an unconditional offer to make over the schools to the State Government, The State Government may lay down conditions for taking over the management and control of such schools and before making over the management it would be binding for the managing committee to comply with and carry out the said conditions. There is no inflexible date for such taking over which may be done by notification in the official gazette from a date specifie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es that the age of superannuation of all employees of the school shall be 58 years whilst the other terms and conditions of the service would continue to be the same as before the taking over until alterations are made therein by the State Government in the prescribed manner by the framing of rules. The subsequent Chapter III pertaining to the management of the schools and Chapter IV dealing with interim arrangement before taking over management and control and lastly Chapter V with regard to the recognition of minority secondary schools are hardly relevant for our purposes. 10. Inevitably one must turn in some detail to the language of the statutory provisions around which the whole controversy must revolve. These may be read at the very outset -- "2. Definition : In this Act unless there is anything repugnant in the subject or context :-- XXX (g) 'Headmaster' means the head of the teaching staff of a nationalised secondary school by whatever name designated; (h) 'Teacher' means the teacher of a nationalised Secondary School; (i) 'Non-Teaching Staff means the whole time staff of a nationalised secondary school, other than the teachers; XXX" &#....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Government in the prescribed manner. X X X" 11. Adverting now to question No. 1 posed at the outset, it would appear that the core issue herein is whether the word 'teachers' employed in the opening part of second paragraph of Section 3(3) includes within its sweep the Headmaster of the school as well who may be working against nine posts of the said unrecognised school. I must notice that the arena of controversy is narrowed down by the illimitable fairness of Mr. Balabhadra Prasad Singh, the learned counsel for the petitioners. He himself took the stand that necessarily a headmaster is also a teacher and thus squarely within the ambit of the larger phraseology and connotation of the word teacher' used in Section 3(3). He took the stand that at best the Headmaster was a persona designata out of the teachers in the school but merely because of that fact he is not out of the wide-ranging definition of a teacher. 12. As a matter of abundant caution I would make it clear that I am in no way resting myself on the concession of counsel for arriving at a conclusion on this significant issue. Applying the well-known common parlance test, it would appear that a Headmas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the teaching staff being a teacher himself. The separate definitions in Clauses (g) and (h) only draw a distinction between ordinary teacher and the head of the teaching staff. This may also have been necessitated because the head of the teaching staff in some schools may be labelled as Principal or by some other designation and, therefore, it was thought necessary to define Headmaster separately and pinpoint that he would be so by whatever name he is designated. Therefore, the mere fact that the line of distinction between an ordinary teacher and the head of the teaching staff has been put in separate Clauses (g) and (h) cannot possibly mean that the two are in any way mutually exclusive. It would perhaps be tautologous to say that the Headmaster is not a teacher though he is in terms the head of the teaching staff and the very nature of his duties implies teaching and giving instruction as his vocation in a school This view is further buttressed by Clause (i) of Section 2 which defines all non-teaching staff as a category other than the teachers. Surely enough the Headmaster cannot fall within the ambit of non-teaching staff. Viewing Clauses (g), (h) and (i) together and harmon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hus rendered in the affirmative and it is held that the Headmaster of an unrecognised secondary school before its take over shall be deemed to be a teacher of that school for the purposes of examination of his qualification and suitability (for appointment to Government service) under Section 3(3) of the Act. 17. Once question No. 1 has been answered in the terms above, the same would go to the very root of the succeeding question No. 2 as well Plainly enough, if the Headmaster is within the ambit of the 'teachers' in the second paragraph of Section 3(3) then both his qualifications and his suitability are to be scrutinised by the committee constituted by the State Government, and it is only if he is found suitable for such appointment that he may be appointed in the Government service. Indeed, the larger question that emerges is that if the Headmaster is also one of the teachers working against nine posts of the school, then are the qualifications and suitability of all these teachers to be meticulously scrutinised before appointment to Government service? Or is it that all these teachers (including the Headmaster) automatically and ipso facto become Government servants a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Government service would first depend upon the qualifications of such a teacher. Plainly enough, if the incumbent teacher does not satisfy even the test of the basic prescribed qualifications, the question of his appointment to Government service would have to be ruled out at the threshold. Any question of the automatic appointment or transfer of an unqualified teacher, to my mind, cannot simply arise under the second paragraph. Secondly, despite the test of qualifications being satisfied and the teacher being eligible for consideration, a further requirement of suitability is laid out by the statute. A teacher may be qualified and eligible and yet not suitable for appointment into permanent Government service. It was forcefully highlighted on behalf of the State by the learned Advocate-General that Section 3(3) deals with such unrecognised schools to the extent that they may have merely as yet applied for permission of establishment. In such private institutions empirically managed by the proprietors or managing committees, the possibilities of favouritism and nepotism for appointment to the post of teachers and Headmasters were not only there but indeed rampant within the State. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at there is the automatic transfer of the school to the State Government by a deeming fiction of the law. Sub-section (1) has no provision even remotely parallel or corresponding to paragraph 2 of Sub-section (3). Plainly enough, the legal situation in Sub-section (1) and Sub-section (3) has to be different and distinct Yet again in Sub-section (2) for lack of any other terminology, we may say that the take over is semi-automatic once the notification in the official gazette from a specified date is made with regard to the recognised minority or proprietary or autonomous secondary schools. Herein again it deserves highlighting that Sub-section (2) dealt with recognised institutions only. If the pre-condition of voluntary hand over by the managing committee was satisfied and equally the conditions laid out by the Government were complied with then a notification would issue taking over the school from a specified date. Sub-section (2) again in a way differs from Sub-section (1) in the sense of there being no automatic take over on the 2nd of October, 1980 by a deeming legal fiction. Equally Sub-section (2) has no corresponding or parallel provision to the second paragraph of Sub-sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the utility of such school is proved and further the conditions laid down by the State Government are fulfilled within three years of the promulgation of the Ordinance. Yet again in the crucial area of the taking over of the services of some of the incumbent staff of the unrecognised schools, the relevant qualifications had to be prescribed. The broad guideline for the suitability had to be spelt out, the procedure for the constitution of the committee for examining the qualification and suitability had to be laid down and finally on the recommendation of such committee the persons found suitable for appointment were to be identified and thereafter appointed to Government service. All these were matters which were left to the widest and even unguided discretion of the State Government by Section 3(3). No statutory rules having been framed, the State Government very rightly canalised these powers by the issuance of statutory instructions to govern all these matters. These are contained in notification No. 129 dated the 30th of November, 1981 (at pp. 644-47 of the Compendium to Important Orders and Circulars). This notification was, in terms, issued under Section 3(3) of the Ordinanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Principal Training College. 5. The Director, Secondary Education, will select the members of the Special Board. Members of the Special Board will called information on the prescribed form. They will verify and send the report. They will submit pointwise clear report regarding the fulfilment of conditions to the Director, Secondary Education. On getting report and after the enquiry made by the sub-committee constituted under Article 2 (ga), the Govt. order will be obtained and then the school will be recognised and taken over. 6. Taking over the management and control of the school :-- (i) Taking over the management and control of the school will be made according to the conditions mentioned in Sections 3(2) and 3(3) of the Ordinance. (ii) The committee constituted under Article 2(ga) of this rule will make enquiry as to the qualification and fitness of teachers. According to the conditions mentioned in Section 3(2) of the Ordinance, grant of recognition of the services of nine teachers, one clerk and two peons will be given after making enquiry as to their qualification and fitness for the post. (iii) In the establishment of approved schools, the State Govt. or the authorised ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r could be made only on the recommendation of the Education Service Board or an authorised officer of the State Government and not otherwise. Equally the age qualification of 45 years for Headmasters was also specified. 22. The stand taken by the learned Advocate-General with regard to notification No. 129 is patently meritorious. Plainly enough, these instructions have statutory force and were not only apt but, indeed, necessary to fill the gaps in the wide discretionary powers conferred on the State Government by Section 3(3). Indeed if it were not to be so done, the wide ranging discretion therein could well be assailed on the grounds of the vice of an unguided and uncanalised power. It must, therefore, be concluded that notification No. 129 was statutory and binding in its nature. Once it is so held as it inevitably must be, then the same would give the lie direct to the theory of any automatic transfer of the incumbent teachers and Headmaster of an unrecognised school into Government service. It is plain that under the second para of Section 3(3) the existing teachers had thus to fulfil all the requirements of the said provision as further elaborated by notification No. 129. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s where the services of the employees of those schools were transferred to the State Government. It was pointed out that under Section 3(2) there is no question of any transfer of these services because this provision envisages a new or fresh appointment into Government service after the examination of the qualifications, suitability and other factors by the authorities. Sharp distinction was sought to be drawn between a deemed transfer of services of school teachers under Sections 3(1) and 3(2) read with Section 4(2) as against a fresh appointment by the Government out of the existing staff working against nine posts of teachers, one post of clerk and two posts of orderlies in such school after assessing their qualifications and suitability to appropriate posts. 26. Though the argument on behalf of the respondent State in this context is not altogether devoid of plausibility, it is equally not possible to accede to the same in its extreme totality. Section 4, as its heading indicates, genetically pertains to consequences of taking over management and control There are no peculiar provisions which can totally exclude its applicability to Sub-section (3) of Section 3 alone. If Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ote that both serially and in the point of time Section 3 precedes Section 4. Obviously, the taking over of the management and control of the school conies first and then alone the resultant legal consequences of such take over as provided in Section 4. Therefore, Section 4(2) is not to be read in extreme isolation but on the soundest canons of construction Sections 3(3) and 4(2) have to be read together and harmoniously. Therefore, the stand of the writ petitioners resting themselves on Section 4(2) as if it stood entirely unrelated to the other provisions must also be rejected. A fair construction of Section 4(2) would indicate that it was one of general application having within its sweep all the three sub-sections of Section 3. Therefore, it had to be couched in wide terms to include within its ambit both the cases of employees whose services were automatically or semi-automatically transferred under Sub-sections (1) and (2) of Section 3 as also of employees who were to be appointed to Government service under Sub-section (3). Consequently Section 4(2) in its application to Section 3(3) inevitably pre-supposes a strict compliance with the provisions of its second paragraph and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent to consider and decide as to what position a taken over employee is fit to be allocated. Sub-section (2) of Section 4, to my mind, cannot possibly be read to mean that on the taking over of an unrecognised private school the services of its Headmaster must be technically converted to the Headmastership of the newly nationalised school even though such a person may not fulfil the pre-requisites of either being qualified or even remotely suitable for the post. Take a case of the Headmaster of an unrecognised school who does not possess the pre-requisite of ten years' experience in a recognised school. Would the State be compelled to appoint him to the nationalised school irrespective of even the absence of qualification and eligibility far from suitability. Not only there is no bar, but Section 4(2), therefore, expressly envisages in such a situation that the State Government, if at all inclined to take over the services of such a Headmaster, may give him the appropriate designation of a teacher or an assistant teacher. It deserves highlighting that in the second paragraph of Section 3(3) it is open to the Government to not appoint any of the employees of the unrecognised sch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s concerned. Thereafter regular Headmasters for such schools may be appointed in accordance with Notification No. 129 dated 30th November, 1981. In my opinion, it is not possible to hold on proper reading of Section 3(3) along with Section 4(2) that once the committee constituted by the State Government recommends for appointment of the erstwhile Headmaster, the State Government is bound by such recommendation. 31. In the aforesaid context of the taking over the services of the employees of an unrecognised school either in a different designation or a lower rank, the supposed theory of reduction in rank must also be repelled. The concept obviously springs from the provision of Article 311. The contention, however, forgets that the pre-requisite of such a claim is rested on the substantive right to hold a particular civil post under the Union of India or the State. Unless a person has first an inflexible right to hold, such a civil post substantively, no question of any reduction in rank and nuances of Article 311 can be attracted. It deserves highlighting that employees of unrecognised schools before their take over were purely private employees and no part of the public service. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the petitioners but the submission is nevertheless patently fallacious. 32. Again where two constructions were possible, the learned Advocate-General forcefully highlighted the "anomalous results which would flow from accepting the stand on behalf of the petitioners and, therefore, avoiding such an interpretation. Our attention was drawn to Sections 39 to 42 of the Bihar Secondary Education Board Act, 1976. He forcefully pointed out that of all the existing Government schools and equally in all the recognised private schools the appointments to the post of Headmasters were even earlier made only on the recommendation of the Bihar Secondary Education Board. The learned Advocate-General emphatically submitted that if it were to be held that all existing Headmasters of the privately run unrecognised schools on their take over are to automatically become permanent incumbents of the posts of Headmasters then this would lead to the gravest anomaly and even violation of Articles 14 and 16 and the right of equality of opportunity in employment The submission was that where in the whole of the State Headmasters of the State and of recognised schools could be appointed only after ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Advocate-General pointed out the fact that as long as the private unrecognised schools were in existence they necessarily functioned as a unit by themselves. Once these schools are nationalised, they come into the main-stream of the State's educational system and they cannot possibly function as isolated units but necessarily are homogenous parts of the educational system as a whole. Transferability of personnel from one school to another would be necessarily inevitable in a nationlised system of education. The school as a unit concept could only co-exist with regard to privately run unrecognised school and would be wholly contrary to the concept of nationalised schools with a single or integrated cadre of educational service. In such a situation to give the fortuitous circumstance, of being the Headmaster of an unrecognised private school such interpretative pre-eminence as to automatically entitle him to be a permanent Headmaster in the State Education Service cannot but spell disaster to the organised educational set up as a whole. I am inclined to agree entirely with the stance of the learned Advocate-General in this context. For the added reason that anomalous and, inde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d paragraph thereof have no place or corresponding provision in the Bihar Non-Government Elementary Schools (Taking Over of Management and Control) Act, 1976. Yet again this judgment missed to notice the significant provisions of Sub-section (3) of Section 3 of the Act and its second paragraph- which is crucial to the issue and sought to interpret Section 4(2) in isolation thereof. As has been noticed above, herein it is necessary to read these two provisions together and harmoniously. Much store was set on the word 'every' in Section 4(2) but that can hardly be conclusive in the light of the earlier discussion in this judgment. The learned counsel for the parties were apparently remiss in not canvassing the provisions of Section 3(3) and the sharp distinction between recognised and unrecognised schools in that section. The concluding part of Section 4(2) which empowers the State Government to give a taken over employee such designation as it may determine went wholly unnoticed. The larger and the anomalous result which must necessarily follow such theory of ipso facto and automatic transfer of even untrained and unqualified teachers of private unrecognised secondary school....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roach and line of reasoning as in Yogendra Khan v. State of Bihar (supra) has been adopted by the learned single Judge in C.W.J.C. 2825 of 1984 (Jainendra Kumar Jain v. Director, Secondary Education-cum-Additional Secretary, Deptt. of Education. Govt. of Bihar, 1985 Pat LJR (NOC) 11. With respect, for the identical reasons given above, the said judgment must also be overruled. 36. In Jai Prakash Prasad v. State of Bihar, 1985 Pat LJR 566 a learned single Judge followed the view in 1983 PLJR 214 (Yogendra Khan's case) and 1984 Pat LJR (NOC) 11 (Jainendra Kumar Jain's case). Consequently, with respect, the said judgment is also hereby overruled. 37. It would then appear that a Division Bench chose to take a similar view in C.W.J.C. 3922 of 1983 (Smt. Shyam Lata Prasad v. State of Bihar) decided of 6th November, 1985. The categoric views expressed in the said judgment would perhaps highlight the pit-falls in deciding intricate legal issues of wide-ranging ramification at the motion stage itself. While construing Section 4(2) of the Act in splendid isolation, it has been observed that what had preceded the taking over of school is absolutely irrelevant and is not to be looked....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntedly noticed that a parallel stream of judicial thought is typified by the judgment of the learned single Judge in Mahakant Jha v. Special Secretary, Education Dept. Govt. of Bihar, Patna, 1983 Pat LJR 647 : (AIR 1983 Pat 233). Therein a mandamus was sought by a teacher to continue in the post and claim arrears of salary on the ground of long continunance even though the original appointment was irregular and, indeed, contrary to the statutory provisions. Categorically repelling such a claim, it was observed :-- "The petitioner undoubtedly has laboured under the impression that he was appointed as an Assistant Teacher in the School by the Competent authority and his appointment was approved by the competent authority but as pointed out in the case of University of Kashmir the appointment of the petitioner was always stricken by the vice of the statutory violation which cannot be cured by the acts of administrative drifts. 10. On the facts and in the circumstances, I am of the view that the petitioner has got no case for interference by this Court and a mandamus cannot issue for either of the reliefs claimed by him in the present writ application." 40. The aforesaid l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n violation of the rules but provided opportunity to those having right links to sponsor such schools, appoint their unqualified favourites and get their services regularised, leaving a number of qualified persons on the streets running from department to department and from one employment exchange to another employment exchange for getting their names registered in the list of the unemployed person. A mere glance to the contents of the Circulars and instructions would convince that a constitutionally responsible Government of the State and the Board created under a legislative sanction give no thought to the rule of law and acted as if their authority accepted no discipline of law. A censor of their conduct, however, is of no help to this Court and the question raised on behalf of the petitioners have to be decided in accordance with law. I have already noted that the cases decided on the point and brought to our notice provide no guidance and perhaps now abstract realism also shall give no help to this Court. It is plain and clear that the petitioners who are not trained graduates, do not possess minimum qualifications for appointment as teachers." Ultimately, in line with ....