Jain Middle School Loohanipur v. State Of Bihar — 1992 DIGILAW 373 (PAT)

Judgment S. B. Sinha, G. C. Bharuka, JJ. 1. All these cases involving common question of law and facts were heard together and are being disposed of by this common judgment. 2. The question which arises for consideration in all these applications is as to whether the State is bound to issue a notification directing nationalisation of the School under the provisions of the Bihar Non government Elementary School (Taking over of Management, and Control)Act, 1976 (hereinafter called and referred to for the sake of bravity as thesaid Act ). 3. For the purpose of these cases, the fact involved in C. W. J. C. No.2775 of 1992 may be taken into consideration. 4. In this case a counter affidavit has been filed wherein it has inter alia been stated that the school does not fulfill the criteria for taking over thereof in terms of the provisions of the said Act. 5. It is accepted at the Bar that the State of Bihar has also taken a decision not to take over any school in view of the financial stringency in terms of the provisions of Sec.3 (2) of the said Act. 6. From the perusal of the impugned order it appears that several other reasons have been assigned by the respondent No.2, one of them being that most of the teachers appointed therein are minors. 7. Mr Awadesh Kumar Mishra, learned counsel appearing on behalf of the petitioner has relied upon a decision of this court in Rajendra prasad Sinha V/s. State of Bihar, reported in 1992 (1) PLJR 609, wherein a division Bench of this court has inter alia held that the Director of Primary fducation has no jurisdiction under the said Act to agree or disagree with the feasibility of the report of the District Level Committee about take over of the School in terms of the provisions of the said Act. In the said decision it has also been held that in terms of Sec.3 (4)of the Act the District Level Committee has to examine the feasibility of take over of school has to be taken by the State Government and the director of Primary Education in a given case only referred the matter back to the Committee for reconsidering the case by asking it to take into consideration the relevant facts but it had no jurisdiction to say yes or no with regard to taking over of the schools under the said Act. 8. From a perusal of the impugned order it appears that one of the reasons for passing the same was that the State has adopted a policy decision to the effect that in view of financial stringency no further school be taken over The said decision was taken by the Council of Ministers. 9. Mr. Mishra, has further drawn our attention to the fact that in c. W. J. C. No.2962 of 1990 a division Bench of this court has doubted the correctness of the aforementioned decision and referred the matter to special Bench. 10. Mr. Mishra, further submitted that in the event the said school is nationalised, the services of such teachers who are not eligible for appointment can be removed from services and then the said ground was not available to the Respondent No.2 of rejecting the claim of the petitioners. 11. Section 3 of the said Act reads as follows :- "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 Expansion 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 bs determined by the District Committee referred to in sub-section (4) for 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. (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, (iii) District Education Officer, (iv) District Inspectos of Schools. (v) Sub-divisional Education Officer of the concerned subdivision, and (vi) Deputy Inspector of Schools concerned. (b) The State Government may, from time to time make changes in the personnel of the District Committee so constituted. " 12. From a bare perusal of the aforementioned provisions it is clear that those schools which come within the purview of sub-section (1) of section 3 were taken over by the State Government with effect from 1st january, 1971. Taking over of management of certain other categories of schools is contemplated under sub-sections (2) and (3) of Sec.3 of the said Act. 13. Sub-section (4) of Sec.3 merely lays down the procedures for taking over of the said school and this is not a substantive provision. 14. There cannot be any doubt that it is the State which has to take a final decision in the matter of take over the school in terms of the provision of the said Act. The State is not bound to take over the school only because the District Level Committee has submitted a feasibility report in favour of the school in question. 15. In State of Bihar V/s. Chandradeep Rai, reported in AIR 1981 SC 2071 it has clearly been laid down that the State is the final authority in the matter of nationalisation of a school. Any other construction shall negate the purport and object of the said Act. 16. One of the reasons which may be available to the State in taking a decision not to take over the management of any school in terms of the provisions of the said Act is financial stringency. Any other construction shall negate the purport and object of the said Act. 16. One of the reasons which may be available to the State in taking a decision not to take over the management of any school in terms of the provisions of the said Act is financial stringency. In the impugned order the said reason has been assigned as one of the reasons by the Director in passing the impugned order. 17. It is well known that the High Court in exercise of its jurisdiction under Article 226 of Constitution of India cannot issue a writ in the nature of mandamus which may impose additional financial burden upon the state. 18. It is further well known that existence of legal right in the petitioners and the corresponding legal obligations upon the respondents is one of the conditions which clothe the High Court to exercise its jurisdiction to issue a writ of mandamus. 19. Section 3 of the said Act neither creats any legal right in the petitioner nor impose any legal obligation on the part of the State of Bihar to nationalise the schools. 20. As noticed herein before the Supreme court in Chandradeep Rais case (supra) has categorically held that in absence of any notification issued under Sec.3 of the said Act, the court had no jurisdiction to issue a writ of mandamus. 21. The same view has been taken in various decision of this court. Reference in this connection may be made to Surendra Prasad and another v. State of Bihar reported in 1989 PLJR 807. 22. In our view as the State had already taken a decision not to take over any other school in terms of the provisions of the said Act, no writ can be issued by us in exercise of our jurisdiction under Article 226 of the constitution of India. 23. It is true that a division Bench of this court in Rajendra Prasad sinha V/s. State of Bihar reported in 1992 (1) PLJR 609 had held that the director of Education has no jurisdiction to say "yes" or "no" in the matter of the feasibility report of the District Committee. 24. However, in the said decision neither the Supreme Courts decision in Chandradeep Rais case (supra) had been taken into consideration nor the court considered the scope and object and purport of Sec.3 of th said Act. 25. 24. However, in the said decision neither the Supreme Courts decision in Chandradeep Rais case (supra) had been taken into consideration nor the court considered the scope and object and purport of Sec.3 of th said Act. 25. This court in view of Article 141 of the Constitution of India is bound by the decision of the Supreme Court. The decision of the Supreme court in Chandradeep Rais case (supra) is a binding precedent. 26. It is now well known that if in a judgment rendered relevant provision of statute has been ignored the same must be held to have been rendered per-incurim. Such judgments create no binding precedents for another co-equal Bench. (See 1990 (2) PLJR 378 (Md. Jainul Ansari V/s. Md. Khalil ). 27. Reference in this connection may also be made to a Full Bench decision of this court in Md. Nazimuddin V/s. State of Bihar reported in 1990 (2) PUR 505 (FB) wherein it has been held as follows :- "this aspect of the matter has also been recently considered by the Supreme Court in the case of A. R. Antulay V/s. R. S. Nayak, reported in 1988 Vol. II, SCC page 602. In that case it has been held that where by reason of the judgment of the supreme Court, fundamental rights of the petitioners therein as enshrined under Articles 14 and 21 of the Constitution of india, were violated in ignorance of salutary principles of law, the judgment must be held to have been rendered pre-incuriam and such a judgment is not binding upon a subsequent Bench. In that case, it was further held that a larger Bench is not bound by the decisions of a smaller Bench. " It also observed :- "in this Connection, reference may also be made to a recent decision of the Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur, reported in 1989 Vol. I SCC. , page 101, wherein it has been held that a decision which is obiter-dicta or rendered per-incuriam or in sub-silentio or with consent of the parties or with a reservation that the same should not be treated as precedent, is not binding upon another Bench. " 28. I SCC. , page 101, wherein it has been held that a decision which is obiter-dicta or rendered per-incuriam or in sub-silentio or with consent of the parties or with a reservation that the same should not be treated as precedent, is not binding upon another Bench. " 28. For the reasons aforementioned, we are of the view that it is not necessary for us to refer the matter to a larger Bench or stay our hands till the decision of the special Bench in C. W. J. C. No, 2962 of 1990, as we are bound by the decision of the Supreme Court. 29. In this connection reference may be made to Bishundeo Singh V/s. Union of India, reported in 1983 BBCJ page 55 wherein it has been held :- "learned counsel appearing for the respondents, however, pointed out that the Supreme Court has granted a special leave against the judgment of this court in the case of Singasen Rabi Das and several others cases arising out of the provision similar to rule 47 in different Rules are pending consideration before the supreme Court. He also informed us that the Supreme Court is to consider the ratio of the aforesaid judgment. The Division personnel Officer, Southern, Railway and another V/s. T. R. Challappan (supra ). In my opinion, till the said case of challappan is not overruled by the Supreme Court it is binding on this court and the respondents were enjoined at least to hear the petitioners before imposing the penalty against them, even if they have decided not to hold any enquiry in accordance with rule 44 of the Rules. " 30. For the reasons aforementioned, we find no merit in this application which is accordingly dismissed but without any order as to costs. Writ Application dismissed.