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TMI Blog1986 (2) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 3rd of April 1982) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... categories. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with particular reference states 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inue to be the same as it was before taking over the management and control of the school until any alteration is made therein by the State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised secondary school. Can it possibly be advocated that the head of the teaching staff would himself not be a teacher? Indeed, he is the presiding genius of 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 ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the language of the statute, a Headmaster clearly comes within the wide-ranging terminology of teachers in the second paragraph of Section 3(3). The answer to question No. 1 is thus 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd paragraph would indicate that it first hinges on the qualifications of the teachersworking against the posts in an unrecognised school The very eligibility for consideration and appointment to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these schools, Sub-section (1) does not provide for any scrutiny of the qualification and suitability of the working staff or their express appointment to Government service. It is only in such schools that 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the Government for prescribing the terms and conditions as it may deem proper for taking over the management and control of the unrecognised schools. Again it was left to the Government to determine whether 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I officer of Bihar Education Service. Another member of the Board will be the Headmaster of Zila School of the adjacent district where the school is situate or the Headmaster of Govt secondary school having experience of at least 15 years or the 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Emphasis was placed on the necessary requirement of the minimum qualifications fixed for the ordinary teachers and at the same time a teaching experience of not less than 10 years in a recognised secondary school Further the requisite certificates had to be furnished and the appointment of a Headmaster 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernmental sanction. On these premises, Mr. Keshav forcefully labelled this class as not even schools as yet but as being merely proposed schools. Therefore, it was argued that Section 4(2) was applicable only to the recognised schools taken over under Sub-sections (1) and (2) of Section 3 because these provisions can apply only to cases 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplies only to the first two sub-sections of Section 3 and not to the third sub-section thereof at all. 29. Even though the extreme stance of the respondent State seeking a total exclusion of Section 3(3) from the ambit of Section 4(2) must fail and is hereby rejected, yet this would, in no way, advance the case of the writ petitioners. It is significant to note 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... designation of the taken over employee. The word 'determination' necessarily implies a proper consideration and meaningful scrutiny before deciding upon the designation. It cannot possibly be a question of a mere technical labelling of a significant public office. When read closely together, the concept of a determined designation expressly involves the power of the Government 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne . Reading Section 3(3) along with Section 4(2) harmoniously there should not be any difficulty in holding that qualifications and suitability even of the Headmasters of the schools to be taken over have to be examined as teachers of such schools and the State Government in the orders of take over can designate such Headmasters only as Acting Headmasters of the schools 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f suitable persons is unavailable. Therefore, the determination of designation under Section 4(2) is not an empty formality or mere labelling of equivalent posts but a meaningful determination for deciding as to in which capacity the taken over employee is fit to serve. To import herein the doctrine of reduction in rank might bring credit to the ingenuity of the learned counsel 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 unrecognise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently this statutory instruction clearly authorised by Section 3(3) is not to be honoured in breach and by deviating from the firm and sound policy of affording opportunity to all eligible persons including the incumbent Headmasters of unrecognised schools (if taken over) for being considered by the Board and thereafter being appointed to the post of Headmasters. Equally the learned 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 Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Judge observed that since the two Acts were similar in scope, they may be called in pari materia. In matters of construction similarity is not identity, and no presumptions with regard to the purported policy of different statutes can be safely inferred or raised. What calls for pointed notice is that the material provisions of Section 3(3) of the Act and in particular the second 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 unrecog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 10(9) of the Act is, in my view, also not warranted by the language thereof. The material question -- whether the Headmaster would also be within the ambit of teachers in second paragraph of Section 3(3) was not even adverted to far from being adjudicated upon and decided. With the deepest respect, the judgment does not lay down the law correctly and must be overruled. 35. The same approach 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 La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sad v. State of Bihar) and allowed the writ petition. For identical reasons, this judgment has also to be overruled. 39. It is unnecessary to advert to the innumerable other single Judge or Division Bench judgments (many at the motion stage), which have followed one or other of the aforesaid cases. It suffices to say that for the exhaustive reasons recorded earlier they are not good law. 39A. On the other hand, it must be pointedly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or improving their qualification. Unfortunately, for this Court at no time relevant rules were brought to its notice and since the respondents extended their favour to some, this Court always thought it proper to give to other complaining of discrimination at the hands of the respondents same benefits. By extending helping hands to those who were recruited in violation of the rules the respondents not only perpetuated and encouraged recourse to appointments in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment of teachers and for appointment or promotion of Headmasters of nationalised secondary schools to the Director in accordance with this Ordinance and the rules framed thereunder. Provided that for promotion of teachers to the selection grade post the recommendation of the Board shall not be necessary : Provided further that in the absence of the recommendation of the Board, and in special circumstances and in anticipation of the recommendation of the Board, the State Government shall be competent to make ad hoc promotion to the post of Headmaster for a period not exceeding six months and to make ad hoc appointment in the prescribed manner to the post of teachers for a period not exceeding six months. XXXXX To my mind, both letter and spirit of this provision indicate that there is no automatic transfer of the existing Headmasters of the private unrecognised schools as the Headmasters of the nationalised schools as well Such a finding would be the antithesis of the process of selection and recommendation by an expert body like School Service Board. 43. It is in the light of the aforesaid statutory provisions that the firm stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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