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PETITIONER: STATE OF BIHAR & ORS.

       Vs.

RESPONDENT: RAMDEO YADAV & ORS.

DATE OF JUDGMENT:       26/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (2) 493        JT 1996 (3)   336  1996 SCALE  (2)768

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard the counsel on both sides.      The admitted  facts are  that Raghunandan Babulal Kanya Middle  School,   Sukhsan  was   taken  over  by  the  State Government on  January 13,  1981, as  a consequence  of  the recommendation  made  by  the  Committee  constituted  under Section 3(4)  of the  Bihar  Non-Government  Primary  School (taking over  control) Act,  1576 (for short, the ‘Act’). As on that date there were seven persons, who were teachers and other  employees   to  whom   grand-in-aid  was  given.  Two candidates, namely, the respondents Ramdeo Yadav and Raj Narain  Yadav   were  untrained   teachers  appointed  after 1.1.1971. They filed the writ petition in the High Court for a direction to regularise their services on the premise that they had  completed  the  training  subsequently  and  that, therefore,  they   are  entitled  to  be  deemed  Government servants from  1.1.1971. The  High Court in CWJC No.1963/95, dated July  27, 1993 allowed the writ petition following its earlier judgment  holding that  they must  be deemed to have been appointed  as on  1.1.1971 and  by the  date  of  their taking over,  namely, January  13, 1981,  they have  already completed that  training and  that, therefore, they shall be regularised as  Government servants.  Calling that  order in question, this appeal by special leave has been filed.      Shri B.B.  Singh, the learned counsel for the appellant contended that though an appeal against the earlier order of the High  Court has  not been  filed,  since  larger  public interest is involved in the interpretation given by the High Court following  its earlier  judgment, the  matter requires consideration  by   this  Court.   We  find  force  in  this contention. In  the similar  circumstances,  this  Court  in State of  Maharashtra vs.  Digambar [(1991)  2 SCC  683] and [(1995) 2  SCC 683]  and in State of Bengal vs. Debdas Kumar [(1991) supp.  1 SCC 138] had held that though an appeal was

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not filed  against an earlier order, when public interest is involved in  interpretation of law, the Court is entitled to go into the question.      It is  then contended  that Section  3(2) and  (3) make distinction  between   the  employees   covered   by   those provisions and the employees of the aided schools taken over under Section  3(2). Until  the taking  over by operation of Section 3(4)  recommendation is complete, they do not become the employees  of the Government under Section 4 of the Act. The Government  in exercise  of the  power under  Section  8 constituted  a   committee  and   directed  to  enquire  and recommend the  feasibility to  take over the schools. On the recommendation made  by  them,  the  Government  have  taken decision on  January 13,  1981 by which date the respondents were not  duly appointed  as the employees of the taken over institution.  Therefore,  the  High  Court  cannot  issue  a mandamus directing  the Government  to act  in violation  of law.      On the  other  hand,  Shri  Rudreshwar  Singh,  learned counsel for  the respondents contended that though they were temporarily appointed  after 1.1.1971, the respondent having been given  training at the Government expense and completed training, they  must be  deemed to  have been taken over and became the  Government servants w.e.f 1.1.1971. Section 4 of the Act  does not  make any  distinction  between  employees regularly appointed  or employees  irregularly appointed and that, therefore, the view taken by the High Court is correct in law.      Having  given   due  consideration  to  the  respective contention, we find that there is force in the contention of Shri B.B.  Singh. It  is seen  that by  operation of Section 1(3) read  with Section  3(2) and  (3), the employees of the erstwhile schools  managed  by  the  district  Board,  Zilla Parishad,  Municipal  Boards,  Patna  Municipal  Corporation became the  Government employees w.e.f. 1.1.1971. Similarly, the schools  managed by  the public  or private undertakings taken  over   by  the   State  Government  also  became  the Government servants w.e.f. the said date.      Under  Section   3(2)  read   with  Section  3(4),  the operation of taking over all the aided elementary schools by the  private   management   committees   and   handed   over voluntarily to  the  control  of  the  Government  would  be operative only  on the  recommendation made by the committee constituted   under    sub-section   (4)   of   Section   3. Consequentially, only on acceptance of recommendation by the Government, taking  over of  the school becomes complete and it becomes  operative. It  would be  clear from the language that it  is not incumbent upon the Government to either take over the school until it decided to do so, and Government is not bound  to accept  all the  recommendations. As  seen the Government exercising the power under Section 8 removing the difficulties have  issued orders on May 2, 1980 constituting the committees. In para 2 thereof, the competent persons and in para  7 clause (d) it says that "if any untrained teacher has been  appointed in  the said  school after 1.1.1971, the services of such teacher will not be taken over. It would be the  responsibility   of  the   Secretary  of  the  Managing Committee to terminate the services of such teacher prior to the said  date". Consequentially,  the operation of the Act, namely, Section  3(2) read with 3(4) will be functional only after the  report submitted by the Committee and accepted by the State  Government. In terms of the aforesaid orders, any untrained teachers  existing prior  to the take over are not eligible to  be taken  over. Section 4 would operate only in respect of  the employees qualified and working prior to the

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taking over.  Consequently, the  view of  the High  Court is clearly illegal.      It is equally settled law by decisions of this Court in of this Court in J & K Public Service Service Commission vs. Dr. Narinder Mohan & ors. [(1994) 2 SCC 630 = (1994) 3 SCALE 597]  that   no  mandamus  would  be  issued  directing  the Government to disobey the law.      In view  of the  above interpretation,  the view of the High Court,  therefore, is  clearly illegal  and  cannot  be implemented.      Tbe appeal  is accordingly  allowed. The  order of  the High Court  is set  aside. Consequently,  the Writ  Petition stands dismissed. No costs.