of Bihar & Ors Vs. Ramdeo Yadav &
Ors  INSC 319 (26
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 SCC (2) 493 JT 1996 (3) 336 1996 SCALE (2)768
O R D
have heard the counsel on both sides.
admitted facts are that Raghunandan Babulal Kanya Middle School, Sukhsan was
taken over by the State Government on January 13, 1981, as a consequence of the
recommendation made by the Committee constituted under Section 3(4) of the
Bihar Non-Government Primary School (taking over control) Act, 1576 (for short,
the `Act'). As on that date there were seven persons, who were teachers and
other employees to whom grand-in-aid was given. Two candidates, namely, the
respondents Ramdeo Yadav and Raj Narain Yadav were untrained teachers appointed
after 1.1.1971. They filed the writ petition in the High Court for a direction
to regularise their services on the premise that they had completed the
training subsequently and that, therefore, they are entitled to be deemed
Government servants from 1.1.1971. The High Court in CWJC No.1963/95, dated
July 27, 1993 allowed the writ petition following its earlier judgment holding
that they must be deemed to have been appointed as on 1.1.1971 and by the date of
their taking over, namely, January 13, 1981, they have already completed that
training and that, therefore, they shall be regularised as Government servants.
Calling that order in question, this appeal by special leave has been filed.
B.B. Singh, the learned counsel for the appellant contended that though an
appeal against the earlier order of the High Court has not been filed, since
larger public interest is involved in the interpretation given by the High
Court following its earlier judgment, the matter requires consideration by this
Court. We find force in this contention. In the similar circumstances, this
Court in State of Maharashtra vs. Digambar [(1991) 2 SCC 683] and [(1995) 2 SCC
683] and in State of Bengal vs. Debdas Kumar [(1991) supp. 1 SCC 138] had held
that though an appeal was not filed against an earlier order, when public
interest is involved in interpretation of law, the Court is entitled to go into
then contended that Section 3(2) and (3) make distinction between the employees
covered by those provisions and the employees of the aided schools taken over
under Section 3(2). Until the taking over by operation of Section 3(4)
recommendation is complete, they do not become the employees of the Government
under Section 4 of the Act.
Government in exercise of the power under Section 8 constituted a committee and
directed to enquire and recommend the feasibility to take over the schools. On
the recommendation made by them, the Government have taken decision on January
13, 1981 by which date the respondents were not duly appointed as the employees
of the taken over institution. Therefore, the High Court cannot issue a
mandamus directing the Government to act in violation of law.
other hand, Shri Rudreshwar Singh, learned counsel for the respondents
contended that though they were temporarily appointed after 1.1.1971, the
respondent having been given training at the Government expense and completed
training, they must be deemed to have been taken over and became the Government
servants w.e.f 1.1.1971. Section 4 of the Act does not make any distinction
between employees regularly appointed or employees irregularly appointed and
that, therefore, the view taken by the High Court is correct in law.
given due consideration to the respective contention, we find that there is
force in the contention of Shri B.B. Singh. It is seen that by operation of
Section 1(3) read with Section 3(2) and (3), the employees of the erstwhile
schools managed by the district Board, Zilla Parishad, Municipal Boards, Patna
Municipal Corporation became the Government employees w.e.f. 1.1.1971.
Similarly, the schools managed by the public or private undertakings taken over
by the State Government also became the Government servants w.e.f. the said
Section 3(2) read with Section 3(4), the operation of taking over all the aided
elementary schools by the private management committees and handed over
voluntarily to the control of the Government would be operative only on the
recommendation made by the committee constituted under sub-section (4) of
only on acceptance of recommendation by the Government, taking over of the
school becomes complete and it becomes operative. It would be clear from the
language that it is not incumbent upon the Government to either take over the
school until it decided to do so, and Government is not bound to accept all the
recommendations. As seen the Government exercising the power under Section 8
removing the difficulties have issued orders on May 2, 1980 constituting the committees. In para 2 thereof, the
competent persons and in para 7 clause (d) it says that "if any untrained
teacher has been appointed in the said school after 1.1.1971, the services of
such teacher will not be taken over. It would be the responsibility of the
Secretary of the Managing Committee to terminate the services of such teacher
prior to the said date". Consequentially, the operation of the Act,
namely, Section 3(2) read with 3(4) will be functional only after the report
submitted by the Committee and accepted by the State Government. In terms of
the aforesaid orders, any untrained teachers existing prior to the take over
are not eligible to be taken over. Section 4 would operate only in respect of
the employees qualified and working prior to the taking over. Consequently, the
view of the High Court is clearly illegal.
equally settled law by decisions of this Court in of this Court in J & K
Public Service Service Commission vs.Dr. Narinder Mohan & ors. [(1994) 2
SCC 630 = (1994) 3 SCALE 597] that no mandamus would be issued directing the
Government to disobey the law.
view of the above interpretation, the view of the High Court, therefore, is
clearly illegal and cannot be implemented.
appeal is accordingly allowed. The order of the High Court is set aside.
Consequently, the Writ Petition stands dismissed. No costs.
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