Sheo Kumar Mishra v. State Of Bihar — 1988 DIGILAW 82 (PAT)

Judgment S. B. Sinha, J. 1. As both these applications involve common questions of fact and law, they were, with the consent of the learned counsels for the parties were heard together and are being disposed of by this common judgment. 2. However, the relevant facts which may be necessary for disposal of these writ petitions would be noticed separately. 3. In these writ petitions the question with regard to the interpretation of saction 3 (4) and Sec.4 (3) of the Bihar Non-Government Elementary School (Taking Over of Management and Control) Act, 1976 arises for consideration. 4. In C. W. J. C. No.313 of 1982 apart of the order dated 1-10-81 passed by the special Secretary-cum-Director (Primary Education) as contained in annexure-9, and order dated 23-10-81 passed by the Deputy Superintendent of education whereby and whereunder the said authority directed the sub-Inspector school to pay the salary to the petitioner on the scale of pay admissible to a matric trained teacher as contained in Annexure-11 and the order dated 4-1-82 whereby and whereunder respondent No.4 was posted as a Headmaster in the said school and as contained in Annexure-14 to the writ petition are in question. 5. The facts of the aforementioned case are short and lie in a very narrow compars. 6. Under a letter issued by the Secretary of the school dated 2-10-69 the petitioner was appointed as a Headmaster of Shankar Bal Bikash Middle School, nayachak, Bhagalpur. The said offer of appointment is Contained as Annexnre-1 to the writ petition. 7. However it may be mentioned that the said appointment was temporary in nature. The petitioner at the time of the aforementioned appointment was merely a graduate and thereafter the petitioner obtained the degree of B. Ed. whereafter the petitioner informed the authorities of the said school about by a letter dated 16-10-73 as contained in Annexure-4 to the writ petition and further prayed therein that he be granted the scale of pay a B. A. trained teacher. 8. The Secretary of the said school by an endorsement made in the aforementioned letter dated 16-10-78 (Annevure-4) itself directed grant of pay admissible to B. A. trained teacher to the petitioner. 9. 8. The Secretary of the said school by an endorsement made in the aforementioned letter dated 16-10-78 (Annevure-4) itself directed grant of pay admissible to B. A. trained teacher to the petitioner. 9. The management of the aforementioned school was thereafter taken over under the provision of the said act after fulfiling the necessary formalities prescribed therefore and an order to the aforementioned effect was issued by the special Secretary-cum-Director by a letter dated 1st October, 1981. It may how evar be mentioned that prior to that the aforementioned school was recognised by the State Government with effect from 7-4-1976 and the sercices ot all the teachers duly appointed in the said school prior to 1-7-72 was recognised by the state Government as would appear from a letter dated 10-6-76 issued by the deputy Director (Education) and communicated to the Secretary of the said school by S. D. O. (Education) Bhagalpur which is contained as Annexure-5 to the writ petition. It further appears that by an office order issued by the Sub-divisional Education Officer, Bhagalpur as contained in Annexure-6 to the writ petition the petitioner was directed to be paid the difference of scale of pay in terms of the recommendation made by the Deputy Inspector of School, Bhagalpur from another office order issued from the office of District Superintendent of education, Bhagalpur it further appears that the scale of pay admissible to the petitioner was approved From an office order dated 23-8-80 issued by the District superintendent of Education, Bhagalpur as contained in Annexure-8 to the writ petition it appears that the petitioner was also given the increment with effect from 10-6-76 on the basis of the recommendation made by the Secretary of the Managing Committee of the said school. 10. Prior to the nationalisation ot the afotementioned school a report which is contained in Annexure-10 to the writ petition was submitted in terms of the provisions of the said Act. It is admitted that the petitioner was posted as headmaster of the said school, 11. However from a letter dated 31st October, 1981 as contained in Annexure 11 to the writ petition issued by the D. S. E. Bhagalpur it would appear that the petitioner was granted the scale af pay of a matric trained teacher. It is admitted that the petitioner was posted as headmaster of the said school, 11. However from a letter dated 31st October, 1981 as contained in Annexure 11 to the writ petition issued by the D. S. E. Bhagalpur it would appear that the petitioner was granted the scale af pay of a matric trained teacher. The petitioner upon having come to learn the said letter dated 23-10-1981 as contained in Annexure-11 to the writ petition filed a representation before the director (Primary Education), Bihar Patna. The said representation is contained in Annexure-13 to the writ petition. 12. The petitioner has asserted that inspite there of the petitioners representation had not been disposed of. 13. By an another office order dated 4th January, 1982 the respondent no.4 was posted as a Headmaster of the said school which is contained as Annexure 14 to the writ petition. 14. The petitioner, therefore, contends that in view of the fact that he was appointed as Headmaster of the aforementioned school and his services have been approved and further in view of the fact that he had been getting the scale of pay of a B A. trained teacher, the respondent Nos.1 to 3 had no authority or jurisdiction to issue a direction to the effecf that the petitioner shall get his salary in the scale of pay admissible to a matric trained teacher only. The petitioners further grievance is that an outsider cannot be posted as a headmaster in the said scool and the petitioner is too entitled to be retained in the said school and the petitioner is too entitled to be retained in the said post. 15. In C. W. J C, No.931/82 the petitioner has prayed for issuance of an appropriate writ or direction commanding upon the respondent to treat the petitioner as a Headmaster of Shri Krishna Government Middle School, Belauri in the district of Siwan and to give him the scale of pay of a B. A. trained teacher and also for restraining the respondent No.5 from joining in the post of Headmaster of the aforementioned Shri Krishna Middle School, Belauri. 16. The facts involved in the aforementioned writ petition also lie in a veay narrow compass. The petitioner was appointed as a teacher in the aforementioned school by the Managing Committee thereof by a letter dated 5-8-1970. 16. The facts involved in the aforementioned writ petition also lie in a veay narrow compass. The petitioner was appointed as a teacher in the aforementioned school by the Managing Committee thereof by a letter dated 5-8-1970. The petitioner, was only a matriculate at the time of his aforementioned appointment and thereafter be enhanced his qualification and passed the B. A. examination in the year, 1973 and obtained his degree in B. Ed. and M. A. in the year 1975 and 1976 respectively. The petitioner states that the Managing committee of the said school appointed the petitioner as a Headmaster on 4-1-1975 and the petitioner since then has been working in the said capacity. 17. From the aforementioned notification dated 16-1-81 as contained in annexure 1 to the writ petition, it appears that the petitioner was given the scale of pay admissible to a matric trained teacher whereas from the charge report as contained in Annexure 2 to the writ petition it appears that the petitioner was being given the scale of pay of a B. A. trained teacher. The aforementioned school admittedly was taken over under the provision of the said Act, with effect from 16-1-81, as would appear from the notification No. As/b3-1432/80-Education dated 16-1-81 as contained in Annexure 1 to the writ petition. On or about 27-2-81. The secretary of the said school handed over the aforesaid middle school with its all movable and immovable properties. As a result of taking over of the said school under provisions of the aforementioned act, all employees including the petitioner become the employees under the State of Bihar. 18. The petitioner filed an application for grant of B. A. trained scale as he had been performing the duties of the Headmaster and further bled an applicaton on 26-6-81 for treating him as a Headmaster of the said school. The aforementioned application of the petitioner was recommended by the block Education Extension Officer as also by the Dy. Secretary of Education the petitioner has stated that other person who are similary situated have been appointed as a Headmasters whereas the petitioner was not being so treated. It has been asserted that the respondents are not treating the petitioner as a headmaster of the said school nor he is being given the scale of pay admissible to a B. A. trained teacher. It has been asserted that the respondents are not treating the petitioner as a headmaster of the said school nor he is being given the scale of pay admissible to a B. A. trained teacher. It has further been stated that the respondent no.5 has been appointed as a Headmaster of the said School. 19. Before proceeding to deal with the respsctive contentions of the learned counsels for the parties it is necesaary to mention that in C. W. J. C. No.313 of 1982 no counter affidavit has been filed by the respondents. 20. Id C. W. J. C. No.931 of 1982, however a counter affidavit was tiled but a copy thereof had not been served upon the counsel of the writ petitioner. The case was listed under the heading for Orders" on 22-11-83 with an office note that the counter affidavit filed on behalf of the respondent nos.1 to 4 was not served upon the other side and by an order of the said date this court directed that a copy of the counter affidavit filed by the respondents must be served on the other side within one week, failing which the said counter affidavit shall not be taken into consideration. In spite thereof no copy of the counter-affidavit was served upon the learned counsel of the writ petitioner and as such the counter-affidavit filed on behalf of the respondent Nos.1 to 4 can not be considered in this case. 21. The petitioner has filed two supplemetary affidavit annexing therewith certain documents in order to show that not only he had been working as a headmaster in the aforementioned that the petitioners services were approved as a Headmaster of the said School and further directed that he be given the scale of pay for that post admissible to him. 22. Learned counsels for the parties have addressed me at great length and have taken me through various circulars issued by the State of Bihar from time to time. 23. But in my opinion the only question which arises for consideration in these writ applicatioas is as to whether in view of the provision of sub-section (2)of section 4 of the said Act the conditions of service of a teacher or employee can be altered to his prejudice. 23. But in my opinion the only question which arises for consideration in these writ applicatioas is as to whether in view of the provision of sub-section (2)of section 4 of the said Act the conditions of service of a teacher or employee can be altered to his prejudice. In order to appreciate the points involved in this case, the scheme and object of the said Act may be taken into consideration. 24. The said Act 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. The aforementioned act although was enacted in the year 1976 but the same was given retrospective effect and retroactive operation with effect from the 1st january, 1971. In the said Act Elementary School has been defined to mean a School of different grades up to class VII and includes, (i) a School established and administered by the District Board and zila Parishad under the provisions of the Bihar and Orissa Local staff self Government Act of 1885 (Ben. Act 3 of 1885 ). (ii) a School established and administered by the Municipal Board under the provisions of the Biharand Orissa Municipal Act, 1972 bihar and Orissa Act VII of 1972 ). (Hi) a School established and administered by the Patna Municipal corporation under the provision of the Patna Municipal Corporation Act, 1951 (Bihar Act XIII of 1951 ). 25. Aided Elementaty School and unaided Elementary Schools have been defined in Sections 2 (c) and 2 (d) of the said act respectively which read as follows :- (2-c) "aided Elementary School" means a private School which has been is receipt of Government grant prior to its being taken over by the State Government and which is administered by a Managing Committee (2-d) "unaided Elementary School" means a private School recognised by the Government and which is not in receipt of any Government grant. " 26 From a perusal of Sec.3 of the said act it would appear that schools of different classes were to be taken over in terms of provision laid down in different sub-section of Sec.3 thereof. 27. " 26 From a perusal of Sec.3 of the said act it would appear that schools of different classes were to be taken over in terms of provision laid down in different sub-section of Sec.3 thereof. 27. In terms of sub-section (1) of Sec.3 of the Act, Elementary Schools managed by the District Board Zila Parishad, the Municipal Board and the patna Municipal Corporation and those opened under the Expansion and improvement Scheme could be deemed to have been taken over by the state government with effect from the 1st day of January, 1971. 28. Under sub-section (2) of Sec.3 of the said Act aided Elementary schools, the Managing Committee 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 he determined by the district Committee in terms of sub-section (4) of Sec.3 of the said Act for that purpose. 29. In terms of sub-section (3) of Sec.3 of the said Elementary School administered by and public or private undertakings were to 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. 30. With regard to the taking over of Elementary School in terms of sub-section (1) of Sec.3 of the said Act, a District Commute in each district was to be constituted for examining the feasibility of taking over or such Schools by the State Government. 31. Section 4 of the said Act which is very important for the purpose of determination of the issues involved in these writ petitions provide for consequences of taking over of the School, Sec.4 of the said Act reads as follows : "4. Consequences of taking over.- (1) All the assets and properties whether movable of immovable owned by the Schools taken over by the State Government under section 3 including buildings documents, books and registers relating to the Schorl shall stand transferred to and be deemed to have come into the possession and ownership of the State Government. Consequences of taking over.- (1) All the assets and properties whether movable of immovable owned by the Schools taken over by the State Government under section 3 including buildings documents, books and registers relating to the Schorl shall stand transferred to and be deemed to have come into the possession and ownership of the State Government. (2) Every officers, teachers or other employees holding any office or post in the School taken over by the State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over the said School and shall continue to do so unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government. 32. Section 7 of the said act provides for the power of the State Government to make rules. It is a common ground that uptil now no rule whatso ever has been framed by the State of Bihar in terms of the aforementioned provisions. 33. Section 8 provides for a power to remove difficulties Various circulars, letters and executive instructions were issued by the State of Bihar pursuant to section 8 from time to time. 34. However at this stage itself it may be mentioned that recently a full Bench of this Court in Krishna dan Mishra V/s. State of Bihar and others, reported in 1987 PLJR 854 AIR 1988 Patna 8 : 1987 BLJ 787 has held that all such circulars letters and executive instructions which were purported to be issued by the State of Bihar in terms of Sec.8 of the Act do not have the force of law. 35. Learned Advocate General however submitted that the Full Bench decision in the aformentioned case has not laid down the correct law and he further submitted that in view of various decision of the Supreme Court of India to the contrary, I should not follow the aforementioned Full Bench decision. 36. The effect of the said Full Bench decision has been dealt in details by me in C. W. J. C. No.2159 of 1982. Smt. Pratibha Singh and others V/s. State of Bihar, and as such it is not necessary to dwell in the said question herein again. 37. 36. The effect of the said Full Bench decision has been dealt in details by me in C. W. J. C. No.2159 of 1982. Smt. Pratibha Singh and others V/s. State of Bihar, and as such it is not necessary to dwell in the said question herein again. 37. It is a well settled principle of law that any executive instruction or circular which might have been issued by the State of Bihar in absence of any rule although has force of law but such circulars or executive instructions cannot have any effect in derogation to the provision of a statutory Act enactment. 38. In view of the facts involved in this case and as stated hereinbefore which have not been controverted, it is admitted that the petitioners of both these writ petitions were posted as Headmastero and have been getting the scale oi pay of a B. A. trained teacher. Before proceeding further it may also be mentioned that under the provision of the said Act no minimum qualification has been prescribed for the post of Headmaster. However, it may be mentioned, on the other hand that even the minimum qualification for holding the post of a headmaster in a High School is B. A trained with some teaching experience. In the premises aforesaid there cannot be any doubt that both the petitioners are highly qualified and they are eligible to hold the posts of Headmaster in an elementary School. 39. There is further no dispute that the schools in which the petitioners had been working were taken over by the State Government after considering a report with regard to the feasibility of the taking over thereof by a Committee constituted in terms of sub-section (4) of Section of the said Act. It is also not in dispute that the petitioners of both the schools, have prior to the taking over of the said school by the State Government were getting the scale of pay admissible to a B. A. trained teacher. 40. It is also not in dispute that the petitioners of both the schools, have prior to the taking over of the said school by the State Government were getting the scale of pay admissible to a B. A. trained teacher. 40. From a persual of the provision of sub-section (2) of Sec.4 of the said Act it would be absolutely clear that the teachers, officers and other employees of the schools are entitled to hold their respective posts by the same tenure at the same remuneration and on the same terms and conditions as have been held by them before the taking over of the said school and shall continue to do so unless and until such tenure remuneration, terms and conditions of service are duly altered by the State Government. 41. It is admitted that neither the tenure nor the remuneration, not the terms and conditions, of the officers, teachers and other employees of the school have been prescribed nor any order has been passed duly altering the tenure, remuneration and terms and conditions of service of such officers teacners and other employees of the school which have been taken over by the State government. 42. As a matter of fact, as stated hereinbefore, no rule whatsoever has been framed by the State of Bihar although 11 years have elapsed after the enactment of the said Act. In my view the wording of sub-section (2) of Section 4 of the Act are absolutely clear and unambiguous and thus two interpretations thereof are not possible. 43. However, the learned Advocate General appealing in C. W. J. C. No.931 of 1982 and Mr. J. N. Pandey, appearing in C. W. J. C. No.313 of 1982 submitted that the very fact that the State of Bihar has been empowered to change the designation of the officers, teachers and other employees of the taken over schools the same by necessary, implication empowers the State Government to accept the services of such officers, teachers and other employees on such remuneration and in such posts as the State Government may deem fit and proper. In my opinion the submissions of the learned counsels appearing for the state cannot be accepted. 44. In my opinion the submissions of the learned counsels appearing for the state cannot be accepted. 44. The very fact that tenure remuneration and other terms and conditions of services of the officers, teachers and other employees of the schools were to remain the same to which he would have been entitled to hold before taking over of the said school and were entitled to continue to do so even after the taking over thereof by the State Government only because the service of such officers, teachers and other employees holding any office or post upon take over becomes an employee of the State Government with such designation as the State Government may determine does not mean that by way of making a change in such designation the State Government is empowered to change tne tenure, remuneration or terms and conditions of the services also. Such a construction of Section 4 (2) of the said Act in my opinion, shall negate the spirit and object for which the said provision has been made and shall lead to manifest injustice and absurdity. 45. In my considered view, the power of the State Government to change the designation must be construed in such a manner so as not to affect the terms and conditions of service of the employees. 46. In other words by changing the designation the terms and conditions of service attached to the post or remuneration payable therefor cannot be altered to the prejudice of the concerned employees. 47. The power to change the designation of an officer, teacher and other employees has been conferred upon the State Government, in my opinion, only for the purpose of bringing an uniformity in the designation of all such officers who were holding similar or equivalent posts. 48. In a given case it is possible that prior designation may not be commensurate with the duties and the scale of pay of an officer holding a particular post and the nature and function in respect thereof. 49. I am, therefore, of the view that the State Government is not entitled to alter the remuneration of other terms and conditions of service of an employee or teacher or other officers under the garb of the power to change the desigcation of such officers, teachers and employees. 50. 49. I am, therefore, of the view that the State Government is not entitled to alter the remuneration of other terms and conditions of service of an employee or teacher or other officers under the garb of the power to change the desigcation of such officers, teachers and employees. 50. It is a cardinal principle of law that a literal meaning has got to be given to the provision of an act. 51. In sutters V/s. briggs reported in 1922 Appeal Cases page 1 at page 8 birkenhead L. C. held as follows :- "whereas here the legalise as are not in serious doubt out duty is to express a decision and leave the remedy (if one be resolved upon)to others. 52. It is also a well known principle of law that when the language is clear and unambiguous the court cannot legislate nor it is open to the court to put any other interpretation which may violate the phraseology used therein nor the width of a particular expression shall be narrowed down or out down. 53. Reference in this connection may be made to 1986 Vol.4 S. C. C.746, State of Kerala V/s. Mathai Verghese and others, and 1963 SC 577. 54. In Caies on Statute Law, 7th Edition, at page 65 the law on the subject has been stated in the following terms : - "if the words of the statute are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law given. " 55. In Hasbury and Law of England, 4th Edition Vol.14 page 940 it has been stated that it is the province of the Legislature to enact statutes, and of the courts to construe the statutes which the legislature has enacted. 56. Recently the Supreme Court of India in Raja Satyendra Narayan singh and another V/s. State of Bihar and others, reported in 1987 PLJR 477 held that basic principles of constructions of every statute are to find out what is clearly stated and not to speculate upon latent imponderables. 57. 56. Recently the Supreme Court of India in Raja Satyendra Narayan singh and another V/s. State of Bihar and others, reported in 1987 PLJR 477 held that basic principles of constructions of every statute are to find out what is clearly stated and not to speculate upon latent imponderables. 57. The Supreme Court of India in all most similar circumstances upheld the statutory continuation of service of the workmen enaged in a Coking Coal mines which was taken over under the Coking Coal Mines (Nationalisation) Act, 1972 in Workmen V/s. B. C. C. Ltd. , reported in 1978 LIC 709. 58. In this connection it may also be unseful to refer to a recent Supreme court decision in Bala Nagrik Co-operative Bank Ltd. V/s. Babhubhai Shankerlal fandya, reported in 1987 Vol.1 S. C. C. page 606 where it has been held that the rule that a stature must be read as a whole equally applies to a section and hence no part of section can be ommitted for interpretation. 59. Even assuring that two interpretations are possible in construing section 4 (2) of the Act, in my opinion the provision of the aforementioned section being benefiicent in nature so far as the employees are concerned same got to be litterally construed in their favour. 60. Reference in this connection may be made to the decision of the supreme Court in Jiwabhai Purushottam V/s. Chhangan Karson and others, reported in AIR 1961 SC 1491 . 61. Further from the plain and unambiguous wording used in the aforementioned provision it is clear that the legislature intended by enacting the said provision that the interest of the officers, teachers and other employees whose services have been transferred form a private institution to the State of Bihar be protected. 62. It is also a fundamental principle of interpretation of statute that every statute must be interpreted ex-visceribus actus (within the four corners of the Act) and in that view of the matter also it is not permissible to construe the words used therein with reference to various circulars and office orders as suggested by the learned Advocate General. 63. 62. It is also a fundamental principle of interpretation of statute that every statute must be interpreted ex-visceribus actus (within the four corners of the Act) and in that view of the matter also it is not permissible to construe the words used therein with reference to various circulars and office orders as suggested by the learned Advocate General. 63. I am therefore, of the view that by reason of impugned orders the petitioners could not have been deprived of their rights to which they were entitled to nor can be deprived of the scale of pay which they had been getting prior to taking over of the said school, as has been sought to be done by reason of the orders impugned in these writ petitions. 64. In the result these writ petitions are allowed and the orders impugned in each of the writ petition are hereby quashed and in both the cases the concerned respondents are hereby directed to treat the petitioners as acting head master or Head master in the same scale of pay which they have been getting so long their remuneration or other terms and conditions are not duly altered by the State Government. 65. In the result these writ petitions are allowed in the aforementioned terms with cost. Hearing fees assessed at Rs.500 in each case. Petitions allowed.