Holding

Untrained teachers appointed after 1 January 1971 and not regularised before the school’s takeover are not covered by Section 4 of the Act and therefore cannot be deemed government servants.

Summary

The Bihar government took over Reghunandan Babula Kanya Middle School on 13 January 1981 under the Bihar Non‑Government Primary School (Taking Over Control) Act, 1976. Two teachers, Ramdeo Yadav and Raj Narain Yadav, who had been appointed as untrained teachers after 1 January 1971 and later completed the required training, filed a writ petition seeking to be regularised as government servants from the date of their appointment. The Patna High Court allowed the petition, holding that the teachers should be deemed appointed on 1 January 1971 and thus regularised upon the school’s takeover. On appeal, the Supreme Court examined the statutory scheme, particularly Sections 3(2), 3(3), 3(4), 4 and 8 of the Act, and the government order under Section 8 which expressly excluded untrained teachers appointed after 1 January 1971 from being taken over. The Court held that such teachers are not covered by Section 4 and cannot be deemed government servants, rendering the High Court’s order illegal. Consequently, the appeal was allowed, the High Court order set aside, and the writ petition dismissed.

Issues considered

Whether untrained teachers appointed after 1 January 1971 but before the takeover of a school are deemed government servants under the Bihar Non‑Government Primary School (Taking Over Control) Act, 1976.
Whether the High Court could issue a mandamus directing the government to regularise such teachers contrary to the statutory provisions.
Whether the Supreme Court may entertain an appeal in the absence of a prior appeal on the ground of public interest in the interpretation of the statute.

Subjects

regularisationuntrained teachersgovernment servantsschool takeoverpublic interestmandamusBihar Non-Government Primary School Actstatutory interpretation

Judgment

l
'"""'· STATE OF BIHAR AND ORS. A
v.
RAMDEO YADAV AND ORS.

FEBRUARY 26, 1996

(K. RAMASWAMY AND G.B. PATTANAIK, JJ.J B

Seivice Law :

Appointment-Regulwisation of-Untrained teachers appointed -Sub-
sequently school taken over by the Govemment-Wlit petition filed by the two C
untrained teachers for a direction to regulmise their seivices as they had
completed the training subsequeitt to their appointment and thus entitled ~o
be deemed Govemment se1Vants-High Court allowing the writ petition-On
appeal held, any untrained teacher existing p1ior to the take over not eligible
to be taken over-Hence not entitled to be regularised and deemed to be
Govemment servants--High Cowt's order set aside--Bihar Non-Govemment D
P1ima1y School (taking over control) Act, 1976-Sections--1., 3, 4, 8.

Constitution of India, 1950.

A1t. 226-Writ jwisdiction-No mandamus would be issued directing E
the Govemment to disobey the law.

J & K Public Se1Vice Commissioner v. Dr. Narinder Mohan & Ors.,
(1994] 2 SCC 630 =
(1994) 3 Scale 597, relied on.

Public Interest.
F
Public Interest involved in interpretation of law-Court entitled to go
into the question even though no appeal was filed against an earlier order.

State of Maharashtra v. Digambar, [1995] 2 SCC 683 and State of
Bengal v. Debdas Kumar, [1991) Supp. 1 SCC 138, relied on. G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4283 of
1996.

From the Judgment and Order dated 27.7.95 of the Patna High Court
in C.W.J. C. No. 1063 of 1985. H
1059
1060 SUPREME COURT REPORTS [1996] 2 S.C.R.

A B.B. Singh for the Appellants.

Rudreshwar Singh and R.P. Wadhwani, for the Respondents.

The following Order of the Court was delivered ~

B Leave granted.

We have heard the counsel on both sides.

The admitted facts are that Reghunandan Babula! Kanya Middle
School, Sukhsan was taken over by the State Government on January 13,
C 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, 1976 (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 Nar'ain Yadav were untrained teachers appointed
D 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
E holding what 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.· . .

F 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 be~n
filed, since larger public interest is involved in the interpretation given by
the High Court following its earlier judgment, the matter requires con-
sideration by this Court. We find force in this contention. In the similar
G circumstances, this Court in State of Maharashtra v. Digambar, [1995] 2
SCC 683 and in State of Bengal v. Debdas Kumar, [1991] Supp. 1 SCC 138
had held that though an appeal was not filed against an earlier order, when
public interest is involved in interpretation of law, the Court is entitled to
go into the question.

H It is 'then contended that Section 3(2) and (3) maJce distinction
STATEv. Y.YADAV 1061

- 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 Govern-
A

ment in exercise of the power under Section 8 constituted a committee and
directed to enquire and recommend the feasibility to take over the schools. B
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.
c
On the other hand, Shri Rudreshwar Singh learned counsel for the
respondents contended that though they were temporarily appointed after
1.1.71, the respondent having been given training at the Government ex-
pense 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 D
or employees irregularly appointed and that, therefore, the view taken by
the High Court is correct is 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 E
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 F
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 commit-
tees and handed over voluntarily to the control of the Government would
be operative only on the recommendation made by the Committee con- G
stituted under sub-section (4) of Section 3. Consequentially, only on ac-
ceptance 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 H
1062 SUPREME COURT REPORTS [1996] 2S.C.R.

A 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 ap-
pointed 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
B Managing Committee to terminate the services of ~uch teacher prior to the
. '·
said date". Consequentially, the operation of the Act, na~ely, Section 3(2)
read read with 3(4) will be functional only after the reporqubmitted by
the Committee and accepted by the State Government. In term~ of the
aforesaid orders, any untrained teachers existing prior to the take over are
C not eligible to be taken over. Section 4 would operate only in respect of
the employees qualified and working prior to the taking over. Consequent-
ly, the view of the High Court is clearly illegal.

It is equally settled law by decisions of this Court. in J & K Public
Service Commission v. Dr. Narinder Mohan & Ors, [1994] 2 SCC 630 =
D (1994) 3 Scale 597 that no mandamus would be i.Ssued 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.

E The appeal is accordingly allowed. The order of the High Court is
set aside. Consequently, the Writ Petition stands dismissed. No costs.

G.N. Appeal allowed.