Maya Raman v. State Of Bihar — 1983 DIGILAW 138 (PAT)

Judgment 1. This application under Articles 226 and 227 of the Constitution is directed against the order dated 14-4-1978, issued under the signature of the Sub-Divisional Education Officer, Chapra, copy whereof is Annexure 8 to the writ application, stating that the services of the petitioner Smt. Maya Raman, an untrained teacher could not be recognised by the Government, as she had been appointed after 1-1-1971. By this application, the petitioner further prays for quashing the order, copy whereof is Annexure 12 to the writ application, by which the District Superintendent of Education, Saran directed the Principal of the Primary Teachers Training College, Sonepur, to cancel the admission of the petitioner to the said College. 2. The relevant facts are not in dispute. The petitioner, an untrained Matriculate, was appointed an Assistant teacher of Baljyoti Sansthan Middle School, Chapra, hereinafter called the School, by the Managing Committee of the said School with effect from 2-1-1972. That school was a recognised and aided School. In accordance with the procedure prescribed, the School was taken over by the State Government with effect from 20-4-1977. The order had been issued by the Regional Deputy Director of Education concerned and though the order for taking over was once cancelled by the State Government, the order for cancellation was quashed vide order of the court dated 7-11-1979 passed in C. W. J. C. No. 3315 of 1975. It is not in dispute that the petitioner was serving as a teacher of the School on the date of the take over and, according to the charge report submitted by the Deputy Inspector of Schools, who took over charge of the School, there were three posts and the petitioner was shown at serial 2 in the list of teachers. The petitioner was paid her salary till 31-1-1978, but payment of her salary was stopped thereafter. That fact is stated in paragraph 7 of the writ petition and has not been denied in the counter-affidavit and, therefore, must be taken to have been admitted. It is not also in dispute that by order of the District Superintendent of Education, Saran (respondent No. 5), the petitioner had been deputed for training at the Primary Teachers Training College, Sonepur, which deputation was recalled by the order contained in annexure 12. 3. It is not also in dispute that by order of the District Superintendent of Education, Saran (respondent No. 5), the petitioner had been deputed for training at the Primary Teachers Training College, Sonepur, which deputation was recalled by the order contained in annexure 12. 3. According to the petitioner, the impugned order refusing to recognise the services of the petitioner as Assistant teacher of the School contravenes Sec.4 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, hereinafter called the Act, and that under Sec. 4 (2) of the Act, the services of the petitioner must be deemed to have been transferred and the petitioner must be deemed to have become a teacher of the State Government and entitled to hold office on the same remuneration and terms and conditions of service as she would have been entitled, to before the taking over of the School and that the State Government could not refuse to recognise her services merely because she was an untrained teacher. No cause has been shown on behalf of the State and its officers who are respondents 1 to 5. According to them, by a letter dated 31-7-1969 of the Secretary of the Education Department addressed to the Director of Public Instruction, the Government of Bihar had ordered that no untrained teacher be appointed in any non-Government Elementary School without the permission of the Additional Director of Public Instruction-cum-Joint Secretary to the State Government, and by a subsequent order contained in the letter dated 26-51975, copy whereof is annexure 7 to the writ petition, Government had laid down that the services of untrained teachers regularly appointed by the managing committees of Primary Schools should be recognised only if they had been appointed till 1-1-1971 and that services of teachers who had been appointed in contravention of Government instructions on a date subsequent to 1-1-1971 should be terminated at once. The 1975 Order further directed that untrained teachers shall not in any event be appointed without the specific prior approval in writing of the Director, School Education. As the appointment of the petitioner had been made after 1-1-1971 in contravention of the aforesaid orders of the Government, the services of the petitioner, they urge, could not be recognised and as the appointment was illegal, the petitioner was not entitled to the facility of training which was provided for untrained teachers appointed till 1-1-1971 only. As the appointment of the petitioner had been made after 1-1-1971 in contravention of the aforesaid orders of the Government, the services of the petitioner, they urge, could not be recognised and as the appointment was illegal, the petitioner was not entitled to the facility of training which was provided for untrained teachers appointed till 1-1-1971 only. 4. In my opinion, the application must be allowed. It is well settled that in view of the provisions of Sec. 4 (2) of the Act the services of even untrained teachers appointed by the Managing Committee prior to the take over of School are deemed to be transferred to the State Government and they become teachers of the State Government and are entitled to the same remuneration which would have been payable to them if the School had not been taken over, if they were on the date of the take over teachers of the School. See the decisions of this Court in Chandra Kumar Chakravarty V/s. Dy. Director of Education, (1979 BBCJ (HC) 378) and the Bench decision of this Court in Krishna Prasad V/s. State (1981 BBCJ (HC) 387 : (1982 Lab IC 152): 5. It is not and cannot be disputed that in point of fact on 20-4-1977 the date on which the School was taken over by the State Government, the petitioner was a teacher of the School. The learned Standing Counsel appearing on behalf of the respondents, however, contends that in the eye of law the petitioner cannot be deemed to be a teacher of the School because the order of the State Government contained in the letter dated 31-7-1969 prohibited the appointment of an untrained teacher in any non-Government School without the permission of the authorities specified therein and the petitioner was appointed by the Managing Committee without the prior permission of the authority aforesaid. Mr. Hoda the learned Standing Counsel argued that in view of the provisions of Rule 18 of the Bihar Primary and Middle School Education Rules, 1961 framed under the Bihar and Orissa Local-self Government Act which required every aided school among other schools, to observe the transfer and other rules of the Department, the aforesaid order was a statutory order, the disobedience of which rendered the appointment a nullity in the eye of law. It is not disputed by the learned Standing Counsel that the order can be regarded as a statutory order only by virtue of the provisions of the Bihar and Orissa Local-self Government Act 1885. In my opinion, in the year 1972 when the petitioner was appointed an Assistant teacher the aforesaid order cannot be regarded as a statutory order under the provisions of Bihar and Orissa Local-self Government Act 1885 because of the provisions of Section 9 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act 1976. Section 9 of the aforesaid Act provides that all provisions relating to non-Government Elementary Schools under the Bihar and Orissa Local-self Government Act. 1885 and some other enactments specified therein in force at the time of enforcement of this Act shall stand repealed. It also contains a proviso "Nothing in this repeal shall affect or be deemed to affect any right, title, obligation or liability already acquired, accrued or incurred for anything done or suffered in respect of the period immediately preceding this repeal". The Act came into force with effect from 1st day of January, 1971 vide Sec.1(3) of the Act. Unless saved by the proviso, statutory provisions relating to non-Government Elementary Schools enacted under the Bihar and Orissa Local-self Government Act, 1885, stood repealed and except as to transactions past and closed, it must be considered that they never existed except with regard to such parts as are saved by the repealing statute. It is, therefore, manifest that unless saved by the proviso to Section 9 all statutory rules or orders relating to non-Government Elementary Schools which have been made under the Bihar and Orissa Local-self Government Act, 1885 stood repealed and, therefore, must be regarded as if they never existed after 1-1-1971. They are saved only as regards right or title acquired, or obligation or liability incurred immediately preceding the repeal. 6. It is obvious that no right or title etc. had accrued. Can it be said that any obligation or liability had been incurred prior to 1-1-1971 which would make the appointment of the petitioner null and void? They are saved only as regards right or title acquired, or obligation or liability incurred immediately preceding the repeal. 6. It is obvious that no right or title etc. had accrued. Can it be said that any obligation or liability had been incurred prior to 1-1-1971 which would make the appointment of the petitioner null and void? The provisions of the proviso are similar to the provisions comprised in a part of S.6 (c) of the General Clauses Act, 1897 which provides that unless a different intention appears, the repeal by statutory enactment shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, It was pointed out by the Supreme Court in M.S.Shivananda V/s. K.S.R.T Corporation ( AIR 1980 SC 77 ) that S.6 of of the General Clauses Act is not intended to preserve the abstract rights conferred by the repealed enactment. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute, On a parity of reasoning, only the specific rights and obligations acquired or incurred prior to the date of repeal i.e. 1-1-1971 are saved by the proviso. As the appointment was made after the repeal of the provisions of the Bihar and Orissa Local-self Government Act, 1885 relating to non-Government Elementary Schools, no specific obligation or liability was incurred by the Managing Committee of the School. It cannot, therefore, be held that the appointment of the petitioner was a nullity in the eye of law. 7. That being so, the case is governed by the ratio of the decisions of this Court referred to above and it must therefore be held that by virtue of the provision of S.4(2) of the Act, the services of the petitioner shall be deemed to have deemed to have been transferred to and the petitioner deemed to have become a teacher of the State Government on the same remuneration and on the terms and conditions of the service as she had before the taking over of the said School and she continued to do so until the conditions of services were duly altered by the State Government. On the findings that the petitioner became a teacher of the School under the State Government, it follows that the order directing cancellation of the admission of the petitioner at the primary Teachers Training College Sonepur was also illegal. 8. I would, accordingly, allow the application, quash the order, copy whereof is Annexure 8 to the writ application, and direct that the petitioner shall be deemed to be an Assistant Teacher of the School and would be entitled to salary at a scale prescribed for untrained Matriculate from the date of take over of the School. The arrears of the salary shall be paid to the petitioner as soon as possible at any rate not beyond six months from today. I further direct that the respondents shall make arrangement for the admission of the petitioner in some Primary Teachers Training College so that she may get an opportunity to become a trained Matriculate. In the circumstances of the case, I would make no order for costs.