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1981 DIGILAW 83 (PAT)

P. Srivastava v. Union Of India

1981-04-14

SATYESHWAR ROY

body1981
Judgment 1. By this application the petitioners have prayed for quashing Annexures 1, 2 and 3 to this application which are, respectively, letter dated 18-7-1978, from the Government of India to the Government of Bihar offering to hand over the schools established and maintained by the Ramgarh Cantonment Board, the letter dated 10-1-1981 from the Government of Bihar to the District Superintendent of Education, Hazaribagh, informing him that the services of teachers of seven Schools enumerated therein which are all schools of Ramgarh Cantonment Board have been taken over by the State Government and the office order dated 17-1-1981 issued under the order of the President of Ramgarh Cantonment Board giving the names of the teachers of Ramgarh Cantonment Board Schools whose services have been handed over to the Government of Bihar. 2. The petitioners are either Headmasters, or Headmistress or assistant teachers in different schools established and maintained by the Ramgarh Cantonment Board constituted under the Cantonments Act. The grievance of the petitioners is that no power has been given to the Cantonment Board or to the Central Government either under the Bihar Non-Government Elementary Schools (Taking Over of Control) Act 1976 (the Act) or under any other law to transfer the services of the petitioners to the State Government and that there is no provision under the Act which empowers the State Government to take over the Schools established and maintained by the Ramgarh Cantonment Board. According to the petitioners, the actions of the Cantonment Board and the Central Government as well as of the State of Bihar is beyond the provisions of the Act and Cantonments Act. A counter-affidavit has been filed on behalf of respondent Number 3, Ramgarh Cantonment Board. The whole thrust of the counter-affidavit is that the schools of the Cantonment Board have been handed over to the State Government in order to place these schools in uniformity with all other Primary Schools which have been taken over by the State Government and also that it was done in public interest. It has been contended in the counter-affidavit that by transfer of the services of the petitioners, their conditions of services shall be maintained. Law referred to by the parties are the Act and the Cantonments Act. 3. Mr. It has been contended in the counter-affidavit that by transfer of the services of the petitioners, their conditions of services shall be maintained. Law referred to by the parties are the Act and the Cantonments Act. 3. Mr. Sahai Sinha, learned counsel appearing for respondent No. 3, took preliminary objection that this Court cannot issue any writ under Article 227 of the Constitution of India, in view of the specific provision in Article 227 (4) of the Constitution of India. It is true that in the cause title of the application Art.227 of the Constitution of India has also been mentioned; but in my opinion that Article has no bearing so far as this case is concerned. The Annexures impunged are not the orders of any Court or Tribunal, far less any order of any Court or Tribunal constituted by or under any law relating to the armed forces. This submission of Mr. Sahai Sinha has, therefore, no merit. 4. It was next contended by him that in view of the decision of the Supreme Court in the case of Ajay Hasia V/s. Khalid Mujib Sehravardi, AIR 1981 SC 487 , no writ can be issued against respondent No. 3 as there has not been any violation of any Articles of Part III or Part IV of the Constitution of India. In that case the question was whether a Regional Engineering College established and attained by a society registered under the Societies Registration Act was State within the meaning of Article 12 of the Constitution of India. It was held by the Supreme Court that even a corporation incorporated under the Indian Companies Act or a Society registered under the Societies Registration Act may be State within the meaning of Article 12 and for the purposes of Part III and Part IV of the Constitution of India, if it is shown that it is an agency or instrumentality of the Government. Ramgarh Cantonment Board is a body created by the Cantonments Act and is a local authority within the meaning of law, therefore, is a State. 5. From the preamble of the Act it appears that it was enacted to provide for the taking over of Non-Government Elementary Schools under the State control for better organisation and development of elementary education in the State of Bihar. 5. From the preamble of the Act it appears that it was enacted to provide for the taking over of Non-Government Elementary Schools under the State control for better organisation and development of elementary education in the State of Bihar. Only two Sections of the Act which will be relevant and referred to at the Bar are Sections 2 and 3 which run as follows:- "2. Definitions - In the Act, unless there is anything repugnant in the subject or context, - (a) "Elementary School" means a school of different grades up to Class VII and includes; (i) a school established and administered by the District Board Zila Parishad under the provisions of the Bihar and Orissa Local Self Government Act, 1885 (Ben. Act 3 of 1885). (ii) a school established and administered by the Municipal Board under the provisions of the Bihar and Orissa Municipal Act, 1922 (Bihar and Orissa Act VII of 1922). (iii) a school established and administered by the Patna Municipal Corporation under the provisions of the Patna Municipal Corporation Act, 1951 (Bihar Act XIII of 1952). (b) "Minority Elementary School" - means a school administered by a linguistic or religious minority as envisaged in clause (i) of Article 31 of the Constitution and which has been in receipt of Government grant prior to its being taken by the State government. (c) "Aided Elementary School" means a private school which has been in receipt of Government grant prior to its being taken over by the State Government and which is administered by a Managing Committee; (d) "Unaided Elementary School" means a private School recognized by the Government and which is not in receipt of any Government grant. 3. Taking over of Non-Government Elementary Schools by State Government:- (1) Elementary School managed by the District Board, Zila Parishad, the Municipal Board, and the Patna Municipal Corporation, and those opened under the Expression and Improvement Scheme shall be deemed to have been taken over by the State Government with effect from the 1st day of January, 1971. (2) Aided Elementary Schools, the Managing Committees of which have handed over voluntarily the control of the School to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) of this purpose. (2) Aided Elementary Schools, the Managing Committees of which have handed over voluntarily the control of the School to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) of this purpose. (3) Elementary schools administered by any public or private undertakings shall be taken over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein. (4) (a) With regard to the taking over of Elementary Schools other than those mentioned in sub-sections (1) and (3) there shall be a District Committee in each district which shall examine the feasibility of taking over of such Schools by the State Government and which shall consist of the following members:- (i) Deputy Development Commissioner/Administrator, District Board - Chairman. (ii) District Superintendent of Education - Secretary. MEMBERS (iii) District Education Officer, (iv) District Inspector of Schools, (v) Sub-divisional Education Officer of the concerned Sub-division, and (vi) Deputy Inspector of Schools concerned, (b) The State Government may from time to time make changes in the personnel of the District Committees so constituted". Under Sec.3 (1) all Elementary Schools enumerated therein shall be deemed to have been taken over by the State Government with effect from the 1st day of January, 1971. The aided Elementary Schools may be taken over under the Act if the Managing Committees of those Schools hand over voluntarily the control of the school to the State Government. Element schools administered by any public or private undertaking shall also be taken over by the State Government by publication of notification in the official gazette. Under the provisions of the Act, therefore, some elementary schools shall be deemed to have been taken over by the State Government with effect from 1-1-1971, some may be taken over if the Managing Committee voluntarily hands over the control of such school and the State Government may by notification taken over elementary schools administered by any public or private undertakings. 6 It is important to notice that the schools established and maintained by the Cantonment Boards constituted under the Cantonments Act have not been referred to anywhere under the Act. It was submitted that definition of elementary school in Sec. 2 (a) is not exhaustive and it shall also include elementary schools of Cantonment Board. 6 It is important to notice that the schools established and maintained by the Cantonment Boards constituted under the Cantonments Act have not been referred to anywhere under the Act. It was submitted that definition of elementary school in Sec. 2 (a) is not exhaustive and it shall also include elementary schools of Cantonment Board. It cannot be accepted to be correct. Those schools are under Cantonment Board created by a Central Act and State Act can have no application in such cases. If the contention of the respondents is correct, then the elementary schools of Ramgarh Cantonment Board have been taken over with effect from 1-1-1971 in terms of Sec.3 (1) of the Act. But that is not supported by Annexure-1, the offer of the Central Government to hand over the schools. Moreover, there is no provision in Sec.3 of the Act for taking over such schools. Therefore, Cantonment Board Elementary Schools cannot be included in Sec.2 (a) of the Act. It is neither an aided elementry school as defined by the Act nor it is an elementary school administered by any public or private undertakings. The Cantonments Act also does not give any power to the Cantonment Board or the Central Government to hand over the schools of the Cantonment Board to the State Government. In such a situation neither the Cantonment Board has any power to hand over the schools along with the services of the teachers to the State Government nor the State Government has any power to take over those schools under any provisions of the Act. The action of the respondents, therefore, is clearly ultra vires the powers vested in them. 7. In the result the application is allowed and Annexures 1, 2 and 3 to this application are quashed. The petitioners shall be deemed to be in the services of respondent No. 3, the Cantonment Board, Ramgarh. In the circumstances of the case there will be no order as to costs