JAI PRAKASH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India. The petitioner has made a prayer for issuance of a writ of mandamus directing the respondents to treat the petitioner as an assistant teacher of Gayatri Yugal High School, Dohra in the district of Nawadah from the date of issuance of notice, contained in Annexure -1 i.e., from 23.9.1983. Shortly stated the case of the petitioner is that he was appointed as an assistant teacher in the school in question vide resolution No. 3 of the Managing Committee dated 15.12.1978 (Annexure -2). He got the appointment letter dated 22.12.1978 directing him to join the post on 31st of December, 1978 (Annexure -3). The appointment of the petitioner was approved by the Managing Committee on 15.1.1979 (Annexure -4). After joining the said school on 31.12.1978, the petitioner claims that he worked there continuously as an assistant teacher. At the time the school was taken over in 1983 he was holding educational qualification of Bachelor of Arts and had completed the training course. The Special Board constituted for recognition of the school and taking over of the management and control of the school inspected the school in question and submitted a report on 11.11.1982 (vide Annexure -5). The name of the petitioner is mentioned at serial No. 7 in the list of teachers. Inspite of the fact that the petitioner was working in the school as an assistant teacher his services were not approved as his name was not included in Annexure -1.

(2.) Mr. Ram Chandra Jha learned counsel appearing on behalf of the petitioner submits that the service of the petitioner shall be deemed to have been taken over by the State Government with effect from the date of issuance of Annexure -1 in terms of Sec. 4(2) of the Bihar non -Government Secondary School (Taking Over of Management and Control) Act, 1981. Learned counsel has relied upon a Bench decision of this court in Krishna Prasad v/s. State of Bihar : 1981 B.B.C.J. 387 and on another decision by a single Judge of this Court in Yogendra Khan and others v/s. The State of Bihar and others ( : 1983 B.B.C.J. 139 : 1983 PLJR 214) as also on a decision by S.K. Jha, J. in Jainendra Kumar Jain v/s. Director, Secondary Education -cum Additional Secretary, Department of Education, Government of Bihar and another ( : 1985 P.L.J.R. NOC 11).

(3.) Sec. 4 of the Act provides the consequences of taking over. Sec. 4(1) provides that all the assets and properties moveable or immovable owned or possessed by the schools taken over by the State Government under Sec. 3 shall stand transferred to and be deemed to have been taken into possession and ownership of the State Government. Sec. 4(2) provides that every officer, teacher or other employee holding any office or posts in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of 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 same terms and conditions of service as he would have held 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. The position is simple. As soon as the school is taken over under Sec. 3 of the Act services of the teachers and other employees of the school are deemed to have been taken over and they become servants of the State. The question only is whether or not they were teachers or employees of the school on the date the school was taken over by a notification under Sec. 3 of the Act. No counter affidavit has been filed on behalf of the State and there is no denial of the fact that the petitioner was not an assistant teacher of the school on the date the school was taken over under Sec. 3. In fact, from the inspection report, which has been marked as Annexure -5 in the writ application, it will appear that the petitioner was a teacher in the school on the date of inspection. His name was included in the list submitted with the inspection report at serial No. 7.