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1974 DIGILAW 192 (PAT)

Kameshwar Prasad v. State of Bihar

1974-09-20

HARI LAL AGRAWAL

body1974
Judgment H.L. Agrawal, J. These two writ applications filed under Articles 226 & 227 of the Constitution of India, with the prayers being the same, have been heard together and are being disposed of by this judgment. 2. The relevant facts in short are these: In the town of Hajipur there is a Middle School namely the Town Middle School. One Kameshwar Prasad who is the Petitioner of the first writ application and respondent No. 6 in the another was appointed as Headmaster of the above School long time back. He was to complete the age of 62 years on 1.2.1974, but he made an application c to the Managing Committee of the said school for grant of extension on the ground of his physical and mental fitness to serve' on the post. The Managing Committee at its meeting held on the 12th of February, 1974 unanimously resolved granting extension of the service of the said Kameshwar Prasad till the completion of his age of 65 years, a true copy of the relevant extract of the said proceeding has been made annexure 3' to the writ application. 3. The Secretary of the Managing Committee intimated to the Sub-divisional Education Officer, Hajipur (respondent no. 3) about the above extension. It appears that on the communication of respondent no. 3, the Deputy Director of Education (Basic & Primary) Bihar (respondent no. 2) passed an order dated 31.1.1974 refusing to grant extension to Kameshwar Prasad and for warded a copy of the said order to respondent no. 3 who in his turn forwarded the same to the Secretary of the Managing Committee with a direction to get Kameshwar Prasad retired from 31-1-1974. A true copy of this order contained in the said letter has been made annexure 5' to the writ applications. The said annexure 5' has been challenged on the ground that respondents 2 and 3 had no authority in law refusing the extension granted by the Managing Committee of the school and direct the Secretary to ask Kameshwar Prasad to retire on 31.1.1974. 4. Counter affidavits have been filed on behalf of respondents 4 and 5 in the writ application no. 427 of 1974 and on behalf of respondents no. 5 and 6 in the Writ Application No. 330 of 1974. They are contesting these applications. 5. 4. Counter affidavits have been filed on behalf of respondents 4 and 5 in the writ application no. 427 of 1974 and on behalf of respondents no. 5 and 6 in the Writ Application No. 330 of 1974. They are contesting these applications. 5. According to these respondents the Middle School in question was being governed by the Bihar Primary and Middle Education Rules, 1961 (hereinafter to be called as the Rules). These rules have been issued by the Local Self Government Department of the State of Bihar in the exercise of its powers conferred by various sections of the Bihar and Orissa Local Self Government Act, 1885. On the 9th of November, 1964, the Government of Bihar in their Community Development and Panchayat Department issued a notification in exercise of the powers conferred by clause (g) of section 138 of the said Bihar and Orissa Local Self Government, Act, for making some rules "for compulsory retirement of teachers of Primary and Middle School maintained or aided out of the District Education Fund". Under rule 2 as originally notified (which has subsequently been amended) the date of compulsory retirement on which he attains the age of 58 years but he could be retained in service after such a date if he continued to be efficient and physically fit up to the age of sixty years. I am informed at the Bar that this period has been amended to 62 years subsequently. According to this rule if a teacher continued to be physically fit and efficient, he could be retained in service in the public interest up to the age of "62 years on the recommendation of the District Committee constituted" for the purpose under rule 3. This period of 62 years has also been likewise amended up to 65 years. 6. According to the contention of the contesting respondents the middle school in question was a school which was covered by this notification. Some documents have also been annexed in the counter affidavit to show that it was an aided school. The word "aided school" has been defined in the said rules means a school under private management receiving financial assistance from the District Education Fund and again the District Education Fund has been defined as the Fund formed under section 54A of the Act. The word "aided school" has been defined in the said rules means a school under private management receiving financial assistance from the District Education Fund and again the District Education Fund has been defined as the Fund formed under section 54A of the Act. According to the section 54A of the Act, every district of the State, a fund to be called "District Education Fund" is to be formed to the credit of which contributions are to be made by various authority and the said consolidated fund was to be vested in the District Board which had to be operated by the District Superintendent of Education appointed under section 62 A of the Act, in accordance with the rules made by the State Government in that regard. The contesting respondents have annexed two documents to show that the school in question was an aided school. One is writ application no. 330 of 1974 and the other is annexure 'B' (1) to the other writ application which is a certificate from the Chairman of the Hajipur Municipality. From both these documents it has been attempted to be established that the school is getting an aid from Hajipur Municipality for the last several years a sum of Rs.45/- per month and some contribution was also made out of the municipal education fund to give enhanced salary and allowances to the school teachers. On the basis of these two documents it was strenuously urged on behalf of the respondents that it was established that the school in question was an aided school within the meaning of the rules and therefore respondent no. 2 was authorised to refuse the recommendation of the Managing Committee by virtue of rule 2 contained in notification dated the 9th November, 1964 referred to above. It is difficult to accept this contention. The school in question is admittedly within the municipal units of Hajipur Municipality and on that account the provision of the Bihar and Orissa Local Self Government Act, will have no application within the limits of the said municipality as the application to the provision of the Act, has been exclusively excluded by Section I of the Act, Itself. It is manifest that any rule framed under any of the provision of the said Act, will have equally no application to this school. 7. It is manifest that any rule framed under any of the provision of the said Act, will have equally no application to this school. 7. Learned Counsel appearing for the respondent has failed to point out any other rule except the rules mentioned above which have been framed with respect to the middle schools. Assuming that the notification dated the 9th November, 1954 referred to above had application within the local limits within which this school is situated, in my opinion even then, rule 2 promulgated under the said notification will have no application to this school as the same has been intended to apply only to such primary and middle school which are either maintained or aided out of the District Education Fund. I have said enough to show that there was no material on the record to establish that any aid was given to this school out of the District Education Fund which has been constituted under Section56 A of the Act. The petitioners on the contrary have claimed that school is a proprietary school. This fact is however conroverted by the respondent and it is not necessary for me to enter into this question for disposing of these cases. 8. Mr. Balbhadra Singh appearing for the contesting respondents contended that the school being a recognised school it was subject and bound to follow all the rules framed for regulation of the middle schools. I do not find it possible to accept this part of the argument either. A recognised school is defined separately than the 'aided school'. If therefore it was intended by the authorities that the provision of these rules should apply to the recognized schools also there should have been sufficient indication to that effect. The grant of the municipal education fund to the school cannot be an aid within the meaning of the rules out of the District Education Fund. 9. For the foregoing reasons I must hold that respondent no. 2 had no authority in law to pass an order contained in annexure 5' and it is without jurisdiction. I accordingly quash the same. Let an appropriate writ in the nature of certiorari be issued quashing the said order contained in annexure 5' to the writ application. 10. In the result, both the writ petitions are allowed but in the circumstances of the case I shall make no order as to costs. I accordingly quash the same. Let an appropriate writ in the nature of certiorari be issued quashing the said order contained in annexure 5' to the writ application. 10. In the result, both the writ petitions are allowed but in the circumstances of the case I shall make no order as to costs. Application allowed.