SRAT. SHYAMLATA PRASAD Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) All the parties are duly represented in this case. We are, therefore, deciding the case finally at this stage itself. The facts are not at all in controversy. The petitioner was the Headmistress of Khedan Badri Chouresia High School, Gauchhari, P. S. Gogri Jamalpur district Khagaria and was drawing the salary and emoluments in the pay scale of a headmistress. Her appointment was duly made by the managing committee of the school by a resolution on 9th August, 1978 which is borne out by a true copy of the resolution of the managing committee as incorporated in annexure 1 to the writ application. Pursuant there to she joined the school in that capacity on 21st August, 1978. She continued, without any break, in that capacity all along. The question of nationalisation of schools by the State Government was under contemplation for a pretty long time which, we presume, was well known to a large Sec. of the people concerned with the education department. When finally the State Government decided to take over the schools some formalities had to be observed with regard to the nature of the schools, the teachers bonafide working there the proper shape of the library, the fitness of the building in which the schools were conducted and soon and so forth. In order to satisfy itself that a particular school was fit to be nationalised a team of inspection was duly constituted by or under the orders of the State Government is the education department. Such a team admittedly inspected this particular school in question in the process of taking over or nationalising the institution. A true copy of the report of the team has been incorporated in annexure 2 to the writ application. Admittedly the school having been found fit for nationalisation it was taken over by the State Government on 21st February, 1983 which is borne out by annexure 3 to the writ application. In the Notification, which is under challenge, the petitioner was described merely as an acting headmistress and, inter alia, it was stated that she will continue to function as the acting headmistress so long as a fresh regular permanent and substantive appointment was not made by the competent authority. If the matter had ended at that, perhaps, the petitioner may have had to face some difficulty, but substantial civil right of the petitioner was jeopardised not merely by the nomenclature but by a positive direction contained in the impugned annexure that she will be drawing the salary only of an assistant teacher which admittedly is much less than that drawn by a regular headmistress/headmaster of the school. Shorn of all details these are the only relevant facts.

(2.) The question arises as to whether the respondents had any jurisdiction in law to so reduce the petitioner's status affecting her prejudicially and to her detriment. That at once brings us to the relevant provisions of law as contained in the Bihar Non -Government Secondary Schools (Taking Over of Management and Control) Act, 1981 (Bihar Act 33 of 1982) (hereinafter to be referred to as the Act). The relevant provisions upon which such jurisdiction on the part of the respondent has to be adjudged depends upon a true construction of certain provisions contained in Chapter II of the Act which deals with "taking over of the management and control". Sec. 3(1) thereof reads as follows : -

(3.) Having so dealt with and disposed of the contention of learned counsel for the respondents we again revert to the provision of Sec. 4 (2) of the Act. It would again be repeating, but in our opinion not fruitlessly to state that the particular provisions' of Sec. 4(2) of the Act is limited or hedged in by no limitation or qualification whatsoever, The provisions of Sec. 3(3) of the Act, have in our opinion no bearing upon a true construction of Sec. 4(2) although we were reminded again and again by learned counsel for the State on the well settled principle of the construction of the statute that the whole of the statute has to be read together so as to harmonise the different provisions thereof. In the instant case we do not find any provisions to be harmonised. The well known principle of construction referred to can apply only where some statutory provisions if constructed in their proper perspective may render the meaning of one or the other provision contrary to each other or make any of them unintelligible and as of no consequence. None of these conditions indice us to be reminded of such a simple and well settled provision of construction of statutes. The well settled principle of canon of construction ut res magis valeat quam pereat is the principle from which no departure can be made in the instant case, "Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected. which will introduce uncertainty, friction or confusion into the working of the system." Refer to Shannons Realities Ltd v/s. Ville de St. Michel 1924 Appeal Cases 185 at Pages 192 and 193 per Lord Shaw, "If, said Lord Greene M. R., "there is one rule of construction for statutes and other documents, it is, that you must not imply anything in them which is inconsistent with the words expressly used" Re. A Debtor (1948) 2 All. E. R. 533 at 536. If language is clear and explicit, the court must give effect to it, "for in that case the words of the statute speak the intention of the Legislature" c.f. Warburton v/s. Love Land (1832) 2 D. & Cl. 480 per Tridal C. J. at page 489. and in so doing it must bear in mind that its function is fus dicere, not jus dare; the words of statute must not be overruled by the judges but reform of the law must be left in the hands of parliament. See Cheney T. Conn. (1968) 1 W. L. R. 242.