TaxTMI 
TaxTMI 
1987 (5) TMI 376
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....rred on behalf of the petitioner that by virtue of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, (hereinafter called the Act), all primary and middle schools of the State were taken over by the State Government. As a necessary consequence, the services of the petitioner and other employees of such schools stood transferred to the Government. By Section 7 of the said Act, power was conferred on the State Government to frame rules for carrying out the purposes of the Act, but it is common ground that despite the passage of eleven years not a single statutory rule under the said section has been framed. 3. In the writ petition, the case sought to be set up on behalf of the petitioner was that a comprehensive notification vide Memo No. G/M-7-074/76- Education 4557 dated 15th December, 1976 was purported to be issued under Section 8 of the Act. Clause 7 of the said notification made provision for disciplinary proceedings and removal from service and provided that such disciplinary proceedings against the teachers will be taken by the District Superintendent of Education with the approval of the District Education Officer. A copy of the relevant Clause ....
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....d. It is asserted that the suspension order has been duly communicated to the petitioner by registered post. 6. A somewhat detailed supplementary affidavit has then been filed on behalf of the petitioner in reply making a change in the original stance and seeking to bring on the record a number of purported statutory notifications issued by the Government under the Act either under Section 8 or otherwise. It is admitted that the earlier notification No. 4557 dated 15th December, 1976 now stands superseded by the later notification No. 3388 dated 2nd December, 1980 issued in the name of the Governor. Thereafter a further notification under Section 8 of the Act, in the name of the Governor, No. 2625 dated 19th November, 1981 (vide Annexure 7) has been issued which, according to the petitioner, removed the District Collectors from the District Establishment Committees and instead Chairman of the Zila Parishad was appointed as its Chairman. Yet again, another notification No. 1532 dated 30th July, 1982 (vide Annexure 8) is said to have been issued whereby some amendments have been made in the constitution of the District Establishment Committee and the Collector was reappointed as its....
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....er under the ambit of Annexure 11 nor within Annexure 2 and consequently it must fall. 9. In order to appreciate the aforesaid submissions and the notifications issued under the Act, it is necessary to briefly scan the scheme of the few provisions thereof. As the preamble of the Act indicates, the object thereof was to provide for better organisation and development of elementary education in the State of Bihar by taking over of non-Government elementary schools under the control of the State. Section 3 provided for the categories of the non-Government elementary schools to be so taken over, whilst Section 4 enumerated legal consequences of such take over. A District Education Fund and Municipal Education Fund were created by Section 5 Elementary Education Committee was constituted under Section 6. The material provisions of Sections 7 and 8 which call for pointed notice are as under : -- "7. (i) The State Government may make rules not inconsistent with this Act for carrying out the purposes of this Act. (ii) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature while it is in session for a total peri....
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....erade as a rule making power under the Act nor as the fountainhead of binding statutory instructions. Since it appears to me that the scope and import of a provision for removing difficulties in giving effect to an Act had been authoritatively elaborated by their Lordships in the following terms in the binding precedent of Madeva Upendra Sinai v. Union of India, AIR 1975 SC 797, it is unnecessary to dilate on the matter any further : -- "For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a "removal of difficulty clause" and the power conferred by it on the Government. To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexity. Under conditions of extreme pressure, with heavy demands on the time of the legislature and the endurance and skill of the draftsman, it is well -- nigh impossible to foresee all the circumstances to deal with which a statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar loca....
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....reference is made to Annexures 2, 7, 10 and 11 which are perhaps only a few of the welter of confusing directions and instructions issued by the respondent State purportedly under Section 8 and sought to be enforced in lieu of statutory rules. Thereby far from removing any difficulty in giving effect to the provisions of the Act an amalgam of contradictory instructions have been issued and empirical directions given which not only in some but in most cases seem to be in headlong conflict with each other and appear impossible of a satisfactory resolution or harmonious construction. For instance, department committees and their personnel arc sought to be created in the garb of removing difficulties for giving effect to the provisions of the Act. The forum for suspension and transfer etc. and other routine matters of day to day administration is again sought to be derived from Section 8. It is unnecessary to get lost in the maze and the bye-lanes of the details of the jumble of notifications issued from time to time and purporting to be under Section 8 and it suffices to say that the few aforenoticed annexures lay down a host of instructions and directions purporting to be statutory u....
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....oes not purport or pretend to be rooted in Section 8. In the admitted absence of any statutory rule whatsoever which should have been framed under Section 7, it would be permissible for the respondent-state to issue instructions in view of the ratio laid down by the Constitution Bench in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 in the following terms : -- "It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." In the light of the authoritative enunciation it has to be held that Annexure 6 does not ex facie suffer from any patent vice or infirmi....