of Bihar & Ors Vs. Project Uchcha Vidya, Sikshak Sangh & Ors  Insc
4 (3 January 2006)
Sinha & P.P. Naolkar
W I T
H CIVIL APPEAL NOS. 6676-6681 OF 2001 S.B. SINHA, J :
Appeals involving common questions of law and fact were taken up for hearing
together and are being disposed of by this common judgment.
of education is a sovereign function of the State. Article 21A of the
Constitution of India envisages that children of age group 6 to 14 have a
fundamental right of education. Clause 3 of Article 15 of the Constitution
envisages special protection and affirmative action for women and children.
keeping in view the aforementioned constitutional scheme, a policy decision was
adopted by the State to establish Project Schools. The State of Bihar is comparatively considered to be
educationally backward. With a view to combat the said problem the State issued
a Circular bearing No.1115 dated 27.5.1981 laying down a policy decision therein
that in the remaining four years of sixth Five Year Plan period, i.e., from
1981-1982 to 1984-1985 the State should achieve the target of establishment of
at least four High Schools, out of which one may be Girls High School in every
Circular letter states that according to the information received there are
many blocks where less than four schools are functioning. Out of 587 blocks of
the State 435 blocks were identified where even a single Girls High School was not recognized. The proposed numbers of schools which
were to be opened are as under : 1981-82 150 1982-83 200 1983-84 200 1984-85
100 Total 650 The districts of Santhal Pargana and Chhotanagpur which were
thence part of the State of Bihar and now part of the State of Jharkhand were to
be given priority as the said areas in educational spheres were found to be
comparatively more backward. In seven districts of the said areas, the
Government proposed to establish 299 new High Schools in 1981-82 in each block
of the said area. As it was found difficult to attain the target of
establishment of minimum four High Schools, it was observed that even if four
High Schools are established, the students for so many schools may not be
found. In the said areas, therefore two High Schools were proposed to be
definitely established in the following terms:
Total 65" It was further laid down therein that :
expected from the District Education Officer posted in Chhotanagpur and Santhal
Pargana area that they will prepare the list of such blocks of their District
immediately where there are less than 2 (Two) High Schools and will make such
arrangement that in the present financial year i.e. 1981-82 in their district
at least two High Schools may be established. At the time of preparing proposal
for establishment of new High Schools priority will be given to those High
Schools which are granted permission for establishment proposed High Schools
and efforts will be made that getting all the conditions regarding recognition
completed from those High Schools, which are accorded permission for
establishment proposed High Schools only they should be granted recognition. By
doing so at least establishment of two High Schools could be obtained without
delay. On one hand where the High Schools are accorded permission for
establishment proposed High Schools will get recognition on the other hand the
local resources like land, building etc. could also properly be used and the
Government would get a big amount as subscription. If in any block then may not
be schools which fine granted permission for establishment proposed High
School, then it is expected from the District Education Officer that looking to
the population distance etc. he will propose for establishment of High School
at such places where the Government land is easily available so that the
expenses to be incurred on purchase of land could be saved. Efforts will be
made to obtain the land and building through local efforts.
Government has also taken a decision that in the year 1981-82 in 7 Districts of
Chhotanagpur and Santhal Pargana area in those blocks one Girls High School may be established where already at least 3 boys High
Schools are functioning. By doing so target of establishing of at least 4 High
Schools in these blocks will be achieved in which there would be at least one Girls High School. For obtaining this target in the area District-wise Girls
High Schools will have to be established in following numbers:- Name of
District Number of newly established Girls High School:
Singhbhum 5 Total = 29" The
District Education Officers were directed to take action for establishment of
Girls High Schools. Further decision has been taken by the State that in Santhal
Pargana and Chhotanagpur areas, 14 other High Schools may also be established.
In such blocks where at least two High Schools are already functioning and
where the local officer thinks it necessary to establish new schools on the
basis of population, area of the block such High Schools were to be Boys High
Schools in the following terms:
Total = 14 Para 8 of the said Circular letter states that in the year 1981-82,
108 High Schools in Santhal Pargana and Chhotanagpur areas could be
established, out of which 79 High Schools were for the boys and 29 High Schools
were for the girls.
a policy decision which was taken in relation to the areas falling outside Santhal
Pargana and Chhotanagpur, it was directed:- "Outside Chhotnagpur and Santhal
Pargana in other areas of the State even now there are some such blocks where
there is not even a single High School or the number of schools is less than 2
in each block.
the State Government has also taken a decision that in the year 1981-82 in
other area of the State, the following number of High Schools will be
of District Number of Boys Schools to be newly established
W. Champaran 2
East Champaran 1
Total = 9" 33 Girls High Schools were also proposed to be established in
areas other than Santhal Pargana and Chhotanagpur where at least Boys High
Schools are functioning. It was directed that the target of the establishment
of 150 High Schools was definitely to be achieved by the end of the year
1981-82. By a Circular letter dated 3.9.1981 a decision was taken to establish
150 schools in the year 1981-82 whereby the District Education Officers were
directed to select the place with the sanction of the Regional Director of
Education and obtain approval of the Government.
again in another Circular dated 21.2.1982, the mode and manner of appointment
as also the requisite qualification for recognition/regularization of services
of teachers of the Project Schools were laid down wherefor Rs. 1.5 crores was
earmarked for construction of building etc.
not in dispute that during 1981-82, 150 schools were established.
to the State, the number of such schools which were established in the first
level situate in different districts of the State were as under:
- 8 Madhubani - 10 Samastipur - 4 Begusarai - 2 Khagaria - 1 Sitamarhi - 1 East
Chambaran- 2 West Champaran- 3 Gopalganj - 3 Saran - 4 Muzaffarpur - 3 Purnia -
3 Bhagalpur - 4 Lohardagga - 2 Gumla - 1 Nalanda - 1 Munger - 1 Bhojpur - 2 Santhal
Pargana - 2 Palamau - 4 Nawada - 2 Gaya - 4 Aurangabad - 1 Giridih - 1 Singhbhum
- 1 Patna - 1 Begusarai - 3 Implementation of the Scheme :
also is not in dispute that a three-man committee constituted for the purpose
of identification of the existing schools identified 57 schools.
so identified were recognized and the appointments of teachers were made by the
Vidyalaya Sewa Board in terms of the aforementioned letter dated 23.2.1985, the
relevant clauses whereof are as under:
preference would be provided in the establishment of schools to the Block head
If there is no Girls School in block then the committee would decide where it would be
appropriate to establish schools.
Where more than
one such schools have been established at the block Headquarter or away then
the selection of one school would be made from amongst them on the basis of the
date of permission given by the State Government for establishment of such
schools and superiority (sic) of physical resources of the school.
Where a school
established by public initiative is taken under the project then the teachers
therein would be appointed by the Vidyalaya Sewa Board." On or about
4.2.1989, a circular was issued for appointment of a competent and qualified
working teaching and non-teaching staff of such schools. Those schools were not
to be treated in the category of nationalized schools for management purposes
and a formal notification was to be issued declaring control of management of
such schools by the Government. In private schools teachers were to be
appointed by Vidyalaya Sewa Board. There appears to be some dispute as a
three-man Committee selected and recommended for bringing them within the
according to the State 57 schools were recommended, the respondents contend
that in fact 225 of such schools were recommended.
contention of the State is that 75 schools selected by the Government directly
and 57 schools recommended by the Committee were all private schools and had
not been established with Government funds.
also not in dispute that despite the fact such schools stood recognized in the
year 1985; qualifications for teachers and strength thereof was prescribed by a
Government letter dated 04.02.1989, the relevant clauses whereof are as under :
will be appointed as teachers in Government Service who fulfill the following
qualification the schools should have been opened with public co-operation and
should have been selected by three men committee as prescribed in department
letter No.142 dated 23.2.1985 and which should have obtained the permission of
establishment from the Madhyamik Shiksha Karalaya and whose students should
have been registered and set up from the school itself for the examination
conducted by Bihar School Examination Board and the result of such student
appearing for the Biahr Secondary Examination should have been published in the
name of school itself who should be appointed in the sanctioned strength by the
Managing Committee and possess the requisite qualification and competitive for
appointment and should possess utility certificate for the subject in the Girl
High school for that very subject and have got the concurrence of Vidyalaya Sewa
In the aforesaid
category of the schools the appointment of the teachers will be made on the
basis of the seniority, qualification and utility against the five sanctioned
posts in the light of the standard strength as mentioned in para (iii)
strength of teachers in such schools will be like that made under the Govt.
Circular No. 705 dated 12.10.1982 and circular No.1027 dated 2.11.1985.
(Hindi-1, English-1 and Sanskrit -1)
(Home Science, Geography, Civics, Economics and three in the light of
seniority, qualification and utility).
(Math-1, Biology- Chemistry-1)
(Minority language, Music, Fine Arts, Commerce, Only one in the light of
seniority, qualification and utility)." For the purpose of appointments of
such teachers, a screening committee consisting of the persons named therein
was constituted. The age of such trained graduate teachers was to be 31 years
while those with M.Ed.
holders were to have the age limit of 32 years. Clause (3) of the said circular
which was basically the subject-matter of the writ petitions before the High
Court reads as under :
The services of
only such teachers will be considered for recognition who are currently working
and who are appointed by the managing committee prior to the date of permission
of establishment or selection by Head quarter or the date of election by the Competent
committee at district level." 5 sanctioned posts for the said schools were
prescribed. According to the State in terms of the said 1989 circular letter,
56 schools having been recognized, salary was being paid to the teachers
thereof. However, out of the said 56 schools, 4 schools are said to be now in
the State of Jharkhand.
and non-teaching staff of several schools filed a large number of writ petitions
before the Patna High Court during the period between 1992 and 1997, inter alia,
contending that said circular letter dated 04.02.1989 is arbitrary and
discriminatory. In the said writ petitions, directions were sought for payment
of salaries to the teaching and non teaching staff of 300 schools, purported to
have been selected in terms of the Government letter dated 12.02.1985 and
23.02.1985. Different orders were passed in the said writ petitions, some of
which were conflicting with others.. The matter ultimately reached this Court.
This Court by an order dated 23.07.1997 passed in Civil Appeal No.10245 of
1996.and connected matters, having regard to such conflicting decisions, opined
that the matter should be resolved by a Full Bench of the Patna High Court.
of the High Court :
Bench of the Patna High Court was, pursuant to the said direction, constituted
and by reason of the impugned judgment dated 07.12.1999, it was held :
over of the schools in question was continuous process under the scheme framed
in terms of the Government letter dated 27.05.1981 and it constituted a single
transaction so as to avoid any discrimination amongst the students of one area
with that of another area.
governing the recognition/regularization of the services of the teachers and
payment of their salaries in respect of Project Schools of 1981-82 would also
apply to the schools selected during 1984-85.
In view of the
unambiguous stand of the State before the High Court, the process of selection
was completed in the year 1986 and there remains no controversy as regard
establishment or selection of 300 Project Schools during the year 1984-85.
The question as
regard recognition and regularization of the services of the teaching and
non-teaching staff of the Project Schools which were selected in the year
1984-85 was categorized as under :
strength of the teachers in the schools;
qualification on the date of the appointment;
over age and
under age on the date of appointment;
with respect to the circular holding the field for recognition/regularization
of the service conditions of teaching and non teaching staff of all the schools
for the year 1984-85;
inter alia held : In view of the ambiguity and contradictions contained in
clauses (ii) and (iii) of letter No.142 dated 04.02.1989, the staffing pattern
of the teachers would constitute 9 posts including the Head Master/Head
Mistress as prescribed in the Government Circular No.705 dated 12.10.1982;
In absence of
any policy decision of the Government fixing the cut off date for the purpose
of possessing minimum qualification, it would not be proper for the State to
refuse recognition/regularization of the services of the teachers on the ground
that at the time of their appointments by the Managing Committee of the
respective schools, they were not trained graduates;
age for teachers of Project Schools of general category would be 31 years on
the date of their appointment by respective Managing Committee of the schools;
having regard to the fact that the teachers had continuously been working in
the schools for more than 17 years, they were entitled for
regularization/recognition of their services within the staffing pattern;
qualifying age for appointment was 18 years;
qualification of possessing a certificate of B.T. is not at par with B.Ed.,
since any person having passed matriculation examination may appear at the B.T.
examination conducted by the Secondary School Examination Board and can get a
certificate, whereas a person is not entitled to get a degree of B.Ed. unless
he or she is a graduate. It will, however, be open to the authorities of the
State Government to consider as to whether B.T. certificate can be equated with
that of B.Ed. qualification or qualification of diploma in education.;
of Circulate letter No.142 dated 04.02.1989 cannot be applied retrospectively,
as the State is not empowered to alter or modify any circular with
retrospective effect to the prejudice of the rights of the Government servants;
governing recognition/regularization of the services of the teachers and
payment of their salaries in respect of Project Schools of 1981-82 would also
apply to the case of schools selected during 1984-85.
Full Bench, however, was of the opinion that as it was constituted to examine
the broad proposition regarding the scope and applicability of different
circulars issued by the State in the matter relating to implementation of the
scheme in question and the service conditions of the teaching and non-teaching
staff qua their eligibility, qualification, suitability etc., for the purpose
of regularization/recognition of the service in the Project Schools, individual
cases have to be examined by the authorities of the State in terms of its
findings, stating :
cases of the petitioners of course, shall be examined by the respondent
authorities in terms of the findings of this Full Bench in these cases, as we
have not been posted with the facts in detail by the respective parties. In
some of the cases State has not been filed counter affidavit perhaps under the
impression that once this Court decided the principle then the authority concerned
would examine individual cases and dispose it of in the light of the said
principle." It was further directed :
"Accordingly, in the light of
the findings recorded above, all the writ applications are disposed of with a
direction to the respondent authorities to examine the claim of the petitioners
for recognition/absorption of their services in the respective schools. Since
these matters continued to remain pending for a long time, final implementation
of the directions of this Full Bench should be made within a period of four
months from the date of receipt/production of a copy of this judgment before
the competent authority. However, in the facts and circumstances of these
cases, there shall be no order as to costs." Appeals before this Court :
Civil Appeal Nos.6625-6675 of 2001 were filed by the State of Bihar questioning
the correctness of the said judgment, whereas Civil Appeal Nos. 6681 &
6676-78 of 2001 and Civil Appeal Nos.6679-80 of 2001 were filed, inter alia,
questioning those parts of the judgment which were in favour of the State.
adverting to the questions raised in these appeals, we would, however, notice
subsequent events which are relevant for the purpose of decision in the instant
the State of Bihar filed these special leave
petitions, the question as regard implementation of the impugned judgment came
up for consideration before the Cabinet. On or about 25.01.2000, the Cabinet
took a decision to create 4 additional posts of Assistant Teachers in the said
300 schools, totaling 1200 teachers which were purported to have been selected/taken
over in the year 1984-85. It sanctioned annual expenditure of Rs.11,26,80,000/-
for payment of salaries of teachers against the 9 sanctioned posts of 300 Project
about 20.11.2000, the State of Bihar has been
bifurcated in two States i.e. the State of Bihar and the State of Jharkhand. According to the Respondents, out
of 300 Project Girls High Schools selected/taken over in the financial year 1984-85,
211 fell within the jurisdiction of the State of Bihar and 89 had gone within the jurisdiction of the State of Jharkhand.
letter 04.08.2003, the State sought to recognize 151 out of 211 Project Girls
High Schools falling under the jurisdiction of the State of Bihar as genuine.
letter dated 30.03.2004, it was laid down :
enquiry is going on in respect of the appointment of the teachers of the
employees of different categories by the C.B.I. In view of a writ application
bearing CWJC No.9847/98 filed in the Hon'ble High Court, Patna. If the appointment of any
employees is found illegal after enquiry, salary already paid, will be
recovered at a time after canceling his appointment." The Government of
Bihar approved the continuance of the functioning of the Project Schools
falling within the jurisdiction of the State Submissions :
behalf of the State :
Dwivedi, the learned Senior Counsel appearing on behalf of the State of Bihar, submitted :
The High Court
committed a manifest error in arriving at a conclusion that the State had taken
over 300 schools as Project Schools in the year 1984-85, although , in fact
only 132 schools were taken over. Our attention, in this behalf, has been drawn
to the counter affidavit filed by the teachers who were said to have admitted
that except 75 selected schools, the others were proposed schools, and those 75
schools would be deemed to have been taken over.
by the Respondent on a letter dated 24.12.1995, whereby certain information was
provided to the Vidhan Parishad could not have been the basis for arriving at
the finding by the High Court that there was no controversy regarding
establishment/take over of 300 schools of 1984-85 Project Scheme. Though a
number of schools had been mentioned therein but in terms of the said letter
the status of the schools had not been specified and in that view of the matter
by reason of the said letter itself, the High Court could not have arrived at a
conclusion that those schools had been taken over and the services of the
teaching and non- teaching staff stood regularized. The State in its affidavit
has categorically stated that the list of the schools was tentative in nature
and not final one of taken over schools.
The High Court
misread the second counter affidavit filed by the State wherein a list of 300
schools had been mentioned but a perusal thereof would show that 116 schools
had not been accorded permission of establishment and the matter relating to
recognition of 37 schools was pending consideration. The status of other
schools had also been shown individually which would show that in some cases,
the sites were disputed, some were under consideration and yet in some others
screening had not been done, and buildings had not been constructed, or project
report was not available or land was not available. Furthermore, some
recommendations in relation to some schools had been rejected. In view of the
stand taken by the State in the second counter affidavit, there is absolutely
no doubt that 153 schools had not been recognized or taken over.
'take over" was loosely used, as having regard to the provisions contained
in Article 300A of the Constitution of India, no property can be taken over or
acquired except by an appropriate legislation.
in this behalf, has been placed on Bishambhar Dayal Chandra Mohan & Ors. etc.
v. State of U.P. & Ors. etc. [(1982) 1 SCC 39] and Jilubhai Nanbhai Khachar
& Ors. v. State of Gujarat & Anr. [(1995) 1 Supp. 596].
Whenever the State intended to take over the schools it had passed enactments,
as for example, Bihar Non-gazetted Educational Institutions "Taking
Over" Act, 1988 and the Bihar Non Government Elementary School
"Taking Over of Control" Act, 1976.
to a decision of this Court in State of Madhya Pradesh & Anr. v. Thakur Bharat
Singh [AIR 1967 SC 1170 : 1967 (2) SCR 454], Mr. Dwivedi would submit that an
administrative order having civil consequences must be supported by law.
As regard the
issue pertaining to the competence of the State to lay down
qualification/criteria for the 2nd phase of schools which is the subject-matter
of the aforementioned circular letter dated 04.02.1989, by reason thereof, not
only the strength of the teachers was confined to 5, but as the educational
qualifications were prescribed thereby the same must be held to have been given
retrospective effect. Only because the strength of 9 teachers was fixed for the
first phase of schools by the Government, the same would not mean that in
relation to the schools set up during the second phase by private persons,
identical standard was automatically required to be maintained. Although the
State Government by an order dated 25.01.2000 sanctioned additional posts for
approved schools, it may be necessary to consider the question about the
correctness of the impugned judgment on a legal principle, having regard to the
fact that the State has the sole jurisdiction to sanction strength of a school wherefor
financial stringency may be a relevant factor. In any event, as regularization
of the teaching and non-teaching staff was required to be done prospectively,
the State had the requisite jurisdiction to lay down the criteria therefor in
terms of Government letter dated 04.02.1989. For the said purpose in view of
the fact that unqualified and untrained teachers were not entitled to claim
regularization the order dated 04.02.1989, would not become retrospective
merely because it is drawn on antecedent facts.
The second phase
of the schools could not have been given the benefit of the criteria mentioned
in the letter dated 2.11.1985, having regard to the fact that the first phase
schools were established by the Government;
far as the second phase schools are concerned, criteria therefor was prescribed
for the first time by the Government in terms of the aforementioned circular
letter dated 04.02.1989. Since the State was merely to provide salaries to
regularized teachers of recognized private schools, it was within the domain of
the State to prescribe the strength of the teachers.
private schools wanted to have more staff, salaries to such surplus staff were
required to be paid by them from its own funds.
In a matter of
this nature, it was argued, Article 14 of the Constitution of India will have
no application, inasmuch as the State is not bound to provide salaries to all
teachers or to provide a common strength of teachers for private schools.
behalf of the Schools/Teaching and non-teaching Staff :
P.S. Mishra, the learned Senior Counsel, appearing on behalf of the Respondents
in some of the matters, on the other hand, would submit :
The fact that
300 Project Schools were selected during 1984-85 is beyond any pale of doubt or
dispute. The status of the said schools can be enumerated in the following
established through public assistance but directly selected by Government, like
75 schools established and taken over from the date of issuance of letter
No.108 dated 12.2.85.
established by public assistance but recommended by three Man Committee in
terms of letter No.142 dated 23.2.85 to be taken over as Project School from the date of such recommendation. Reliance in this
behalf is placed on Annexure R-1 (Colly) of I.A. No.114-130 of 2001 at Page 23
to Page 64.
The schools as
enumerated in category (a) and (b) as stated above are covered by one
nomenclature, i.e. Project Schools.
schools are not like Zila Schools (Government Schools) or nationalized schools
because it has been established/selected by Government under a scheme, aimed to
provide at least four Secondary/High Schools out of which one must be Girls School. These schools as per Government scheme have been
established in most cases by taking over private schools which have been either
granted permission for establishment or was at least proposed schools.
before the Full Bench that the process of selection of all schools was
completed in the year 1986 on the basis of recommendations of a three-man
Committee, the State cannot now take a different stand. In any event, the State
has accepted in several documents that a number of Project Schools were taken
over. Our attention has further been drawn to the fact that during the pendency
of the writ petitions, a direction was issued by the High Court to the
Secretary to file a list of 300 Project Girls High Schools, which were selected
and taken over in the financial year 1984-85, pursuant whereto an affidavit was
filed enclosing a list of such schools.
Such a stand,
the State has taken before the Legislative Council, as would appear from the
letter dated 26.12.1995. In any event, as the Cabinet itself has taken a
decision on 25.01.2000, while implementing a part of the judgment by
sanctioning four additional posts of teachers for 300 schools, the said
question now does not survive.
In a letter
dated 07.12.1994 issued by the Secretary, Education Department, it was observed
that 300 Project Schools were selected in the year 1984-85. It was further
observed that the scheme is to be implemented from Class VIth to Class Xth wherefor
the curriculum of education was also prescribed. It was highlighted that the
present sanctioned strength of five teachers was not sufficient.
The State of Bihar having framed the aforementioned
scheme of establishing girls' schools in 435 blocks which were identified where
there were no recognized Girls High Schools and in that view of the matter the
State Government decided to open altogether 650 Girls High Schools in different
blocks during the following financial years :
No. of Blocks 1981-82 150 1982-83 200 1983-84 200 1984-85 100" 150 schools
were established in the year 1981-82. However, no such Girls schools were
established in the year 1982-83 and, thus, by reason of the aforementioned
circular letter dated 25.01.1985, a decision had been taken to open 300 schools
in different blocks. Initially by a letter dated 12.02.1985, 75 schools in
different blocks and districts were selected followed by letter no.142 dated
23.02.1985, in terms whereof it was decided to select 225 schools established
by public assistance after necessary recommendation of the three-man Committee.
During the said year, therefore, 300 schools were established. There are
several other documents to show that the stand taken herein by the State as
regard the number of schools is not correct.
It is not a case where
the property belonging to the schools had been taken over. In view of the fact
that such take over was by reason of an agreement between the parties, it is
permissible for the State to do so in terms of Article 162 of the Constitution
of India. The executive power can be exercised to supplement the legislative
power and if no legislation is operating in the field, such executive powers
which are implied, ancillary or inherent would include such powers which are
required to carry into effect the aims and objects of the Constitution.
primary duty of the executive is to take stock of the educational needs of the
people in the State, in absence of any statute operating in the field it, in
furtherance of the said object, can issue necessary circulars, which cannot be
said to be invalid in law as lacking legislative sanction. The stand of the
State, that the list of 300 schools submitted to the legislative council was
tentative in nature, was incorrect as would appear from the office order dated
22.10.1999 wherein it had treated the said list to be final and on the basis
whereof the services of the teaching and non-teaching staff of the Project
Girls High Schools at Guthani, District Siwan had been regularized.
the Headmistresses had been appointed in 224 Project Schools, as would appear
from a letter dated 02.10.1988, wherefor funds had been sanctioned for their
pay and allowances.
A bare perusal
of the second counter affidavit affirmed by Shri M.K. Agarwal in C.W.J.C.
No.12326 of 1992, would show that the schools in Sl. Nos. 1 to 116 are only
proposed schools and have not been accorded the requisite permission of
establishment. However, in the third counter affidavit filed in the same writ
petition, it has categorically been stated that the said schools have been
selected by a three man committee, and that they did not receive the opening
permission [provisions of letter No. 142 sated 04.02.1989]. It has been further
stated that schools at Sl. Nos. 117 -192 are those schools of 1984-1985 which
are run by the Department and in many places the district authorities have
appointed clerks and peons. It has also been stated that the schools at S. No.
215 to 230 are those schools whose cases have been disposed of by the
Government. A perusal of the said list shows that in these schools approval of
services has been given and the said schools have been selected by the District
Selection Committee. A screening committee was also constituted for recognition
and regularization of services of the teachers belonging to the schools.
Out of the
schools which fall within the orbit of proposed schools at Sl. Nos. 1 to 116,
there are many schools which have been recognized as valid in terms of the Government
letter dated 04.08.2003.
In ground 'F' of
the Special Leave Petition filed by the State, it has admitted that the construction
of buildings of 248 schools have been completed. In view of the admitted
position as regard selection of schools, the High Court was not called upon to
consider the validity of the decision of the Government to take over/selection
of particular Project Schools and, thus, the State should not be permitted to
raise the said question at this state.
Shrivastava, the learned Senior Counsel appearing on behalf of the Respondents
in Civil Appeal Nos.6626-6675 of 2001, supplemented the submissions of Mr. Mishra,
urging that as the Full Bench was called upon to decide the broad and general
proposition as regard the question of absorption of the second phase schools
comprising 300 taken over schools, no decision from the High Court was invited
as regard validity of the taken over thereof and, thus, they should not be
permitted to raise the said contention before this Court for the first time.
attention, in this behalf, has been drawn to the following statements made in
the Counter Affidavit filed in CWJC No.12326 of 1992 :
it is submitted that the list of Project Schools in the second phase number 304
and the excess of four such project schools is due to the fact that four of
them were later on added by specific Government order." Our attention has
further been drawn to the second supplementary counter affidavit wherein the
following statements have been made :
established with public assistance but directly selected by Government will be
deemed to be taken over schools on and from the date of issuance of such a
established with public assistance but recommended by three man committee
consisting of District Magistrate, DDO, DEO vide letter No.142 dated 23.2.1985
will be deemed to be taken over school on and from the date of an issuance of
such letter in favor of the school concerned." It was submitted on the
basis thereof that no difference now exists in the status of the two categories
of schools. In any event, having regard to the decision of the Cabinet to
sanction four additional posts in each of the 300 Project Schools, the State
must be deemed to have accepted the factum of taking over of the said number of
schools. Despite the fact that the teachers had continuously been working and
the Cabinet directed to release funds, before this Court certain new points are
raised to which the State is not entitled to. The State has adopted an
inconstant, discriminatory, unjust and arbitrary attitude towards the teachers
so far as payment of salaries to them is concerned. The submission that in
absence of any legislation, the schools could not be taken over is barred by
the principle of equitable estoppel.
Sunil Kumar, the learned counsel appearing on behalf of the Appellants in Civil
Appeal Nos.6676-6678 and 6679-6680 of 2001, would submit that those appeals are
confined to some portions of the impugned judgment, namely, paragraph nos. 24
to 27 thereof, whereby the benefit of regularization had been denied to such of
the teachers of the erstwhile High Schools who were either basic trained or had
have their training in Physical Education. It was submitted that the Government
has issued several circulars, from a perusal whereof it would appear that the
State has equated basic trained teachers as well as those teachers trained in
Physical Education with the Bachelors of Education, which has also been noticed
by the High Court but it committed an error in arriving at a finding that
whereas such equivalence may be applicable in relation to the appointments of
teachers of High Schools which were under private management, but such
equivalence would not apply to Project Schools.
submitted that having regard to the fact that teachers of Physical Education as
well as teachers who were basic trained having been held to possess requisite
qualification for appointments in High Schools when the same had been taken
over as Project Schools by the State, there cannot be any reason for not
recognizing their services on the said basis.
appearing in Civil Appeal No. 6681 of 2001 would submit that the Appellant
therein was a clerk who was appointed in the school when he was below 18 years
of age by the Managing Committee of the school. Although his services were
regularized and his salary was paid subject to the decision of this case, the
Appellant is highly prejudiced by that part of the judgment of the High Court
whereby minimum age for appointment had been taken to be 18 years. The learned
counsel submitted that it would prove to be harsh, if his services are not
directed to be regularized.
State framed the scheme in question having constitutional goal in mind. Imparting
education is the primary duty of the State. Although establishment of High
Schools may not be a constitutional function in the sense that citizens of
India above 14 years might not have any fundamental right in relation thereto
but education as a part of human development, indisputably is a human right.
The framers while providing for equality clause under the constitutional scheme
had in their mind that women and children require special treatment and only in
that view of the matter, protective discrimination and affirmative action were
contemplated in terms of clause (3) of Article 15 of the Constitution of India.
this case, however, the shifting of stand by the State of Bihar is apparent. Whereas the main
scheme framed in the year 1981 postulated establishment of schools by itself
and that too in the most backward areas of the then State of Bihar, namely, Chhotanagpur
and Santhal Pargana, the facts noticed hereinbefore clearly show that the main
purpose for which the said scheme was formulated had been greatly deviated
from. In stead and place of establishing more and more girls' schools in Chhotanagpur
and Santhal Pargana regions, more and more schools were sought to be
established in other parts of the State as well. The paradigm shift on the part
of the State of Bihar in the matter of implementation of
scheme did not end there. Only after establishment of 75 schools directly and
appointing teaching and non-teaching staff through Vidyalaya Sewa Board, it for
reasons undisclosed, intended to give recognition to the private schools.
State in implementation of the scheme failed and/or neglected to adhere to one
stand. It although took a categorical stand that Project Schools would not be
in the category of nationalized schools or government schools, we do not know
on what basis while identifying and selecting private schools for recognition
thereof funds were also allotted for construction of the buildings. We,
furthermore, fail to understand as to how in the special leave petition it was
contended that construction of buildings of 248 schools out of the proposed 300
schools is over. Allocation of fund for construction of school buildings or
actual construction thereof does not go with the contention that the private
schools were to be recognized.
State of Bihar, thus, took different stands at
different point of time. We have, therefore, not been given a clear picture as
to how many schools were constructed by the State itself or how many of them
had been constructed with public assistance and/or how many of the schools were
identified and proposed to be recognized/taken over. The Respondents, however,
point out that in a meeting of the Administrative Post Sanction Committee held
on 10.07.1995 under the chairmanship of the Chief Secretary, Government of
Bihar, a decision was taken to call for a list of 300 Project Girls High
Schools. A list of the said schools pursuant thereto was said to have been sent
by the Director, Secondary Education, to the Secretary, Administrative Post
Sanction Committee, Bihar. In response to a query, a list of
300 Project Girls High Schools was sent to the Bihar Legislative Council.
However, therein also certain schools were stated to be under construction.
From the said letter of the Director dated 26.12.1995, it does not appear that
all the schools were functioning. The Secretary of the Department of Education,
however, at the instance of the High Court filed an affidavit in CWJC No.12326
of 1992, wherein existence of 300 Project High Schools was accepted.
in the second counter affidavit affirmed by Shri M.K. Agarwal, filed in CWJC
No.12326 of 1992, it was stated that the schools at Sl. No. 1 to 116 are those
schools which are proposed schools and have not been accorded permission for
establishment. However, in the third counter affidavit, it has been stated :
S.L. No.1 to 116
are those Project Schools of 1984- 85 which have not received the permission of
establishment by the Director, Secondary Education, Budh Marg, Patna. These schools were selected by
three man committee but did not receive opening permission by the Director,
Secondary Education within the provision of letter No. 142 dated 4.2.1989.
S.L. No.117 to
192 are those Project Schools of 1984-85 which are run by the Department on the
basis of deputation of teachers from nationalized High Schools.
many places the District Authorities of the department have appointed clerks
and peons whose number is yet to be ascertained from the D.E.O.'s of respective
S.L. No.193 to
214 are those project schools of 1984- 85 whose cases are under consideration
either by the Screening Committee or by Government.
From S.L. NO.215
to 230 are those project schools of 1984-85 whose cases have been disposed of
by the Government. The letter no. and date of each school is mentioned in the
chart of AnnexureX/2." From what has been noticed hereinbefore, it is
evident that the officer of the State had at different points of time took
different stands. We, however, fail to understand as to how 300 Project Girls
High Schools could be started when from the materials brought on records, it is
evident that a large number of boys schools also were selected for recognition
by the 3- Man Committee.
no specific contention has been raised before us, from the circular letter
dated 30.03.2004, it appears that an enquiry as regard appointment of teachers
of the employees of different categories of schools is being carried out by
CBI. We, however, do not intend to make any comment thereupon.
also of some interest to notice that whereas emphasis was laid on spreading of
education amongst women by establishing at least one Girls High Schools school
in each identified block, for all intent and purport a shift was made towards
Boys High Schools.
other hand, the consistent stand of the State before the High Court as also
before us was that the three-man Committee was appointed for the purpose of
identification of such schools which were situated in various blocks. For what
precise reason is the bone of contention between the parties, namely whether
they are to be recognized or the schools were to be taken over lock stock and
barrel; whether management continues to be in the private hands and the State
only intended to pay salaries of teachers; whether 5 or 9 posts in the Project
Schools recognized; or whether the management of such schools had also been
taken over. Whether the properties belonging to the Managing Committee of the
erstwhile schools vested in the State of Bihar one way or the other is not known. It is also not known, as to what
extent, if any, there had been public participation in the establishment of the
schools, viz. how the land of the schools was donated; who constructed the
buildings; or how the Managing Committee of such schools was constituted.
is a case of taking over of the schools, in the absence of a legislation, the
right, title and interest of the erstwhile proprietary of the school and/or
Managing Committee did not vest in the State.
have not been apprised as to whether any agreement as such had been entered
into by and between the Managing Committee of the erstwhile schools and the
three-man Committee headed by the Collector of the district.
also fail to understand that if the process of selection was completed in the
year 1986, as urged by Mr. Mishra, how those schools could be taken over in
over or Regularization of the Services :
as taking over of the services of the teaching and non-teaching staff of the
Project Schools is concerned, even the same is surrounded by mystery. Counsel
appearing on behalf of the Respondents had unequivocally stated that the
services of the teaching and non-teaching staff had been regularized. The
expression 'regularization' has a definite connotation. Regularization of
services must precede a legislative act or in absence of legislation, rules
framed in terms of proviso appended to Article 309 of the Constitution of
India. [See State of UP v. Neeraj Awasthi 2005 (10) SCALE
286] The concept of regularization pre-supposes irregular appointment at the
first instance so as to enable the employer to regularize the same. The dispute
in this behalf does not revolve round the question of regularization of the
services of teaching and non-teaching staff of the schools who were thithertobefore
appointed by Management of Private schools. Had the legislature of the State of
Bihar made an enactment nationalizing the schools like Bihar Non-Government
Elementary Schools "Taking over" Control Act, 1976 the terms and
conditions for taking over of the services of the teaching and non-teaching
staff could have been laid down therein so that as and from the appointed day
specified therein the teaching and non-teaching staff in stead of continuing in
the services all the Managing Committee of the School would have become
government servants. In this view of the matter, in absence of any policy
decision of the State it cannot be said that the services of the teachers had
been taken over, whether along with properties of the schools or not, so as to
enable the courts of law to arrive at a definite conclusion that the teaching
and non-teaching staff for all intent and purport have become the employees of
one thing to say that the Management of the school has been taken over together
with the services of the teaching and non-teaching staff and it is another
thing to say that the State has recognized the schools and is bound to pay the
salary and such teaching and non-teaching staff on the same scale and pay as it
has been paying to its own teachers. In case of nationalization of schools,
furthermore in terms of the provisions of the Statute itself, the educational
or qualification as also other qualifications for taking over the services of
the teachers would be laid down. In absence of any such legislation, it was
expected of the State to lay down such criteria in clear terms by way of policy
decision or guidelines not only for the purpose of letting the teachers know as
to where they stand but also for the purpose of determining as to whether such
teachers are available in the schools who are entitled to salaries and other
emoluments payable to them by the State.
schools were established, indisputably teaching and non-teaching staff thereof
were required to be appointed through Vidyalaya Sewa Board in conformity with
the existing rules as well as Articles 14 and 16 of the Constitution of India.
It is, thus, not a case where the concept of regularization could have been
is nothing on record to show as to the precise job required to be performed by
the three men Committee i.e. they were to identify such schools which met the
criteria laid down in the Circular letter dated 25.9.1981 or 25.1.1985 or
whether they were also to scrutinize the academic and other qualifications
required for appointment of the teaching and non- teaching staff. Except
certain statements made in the affidavit before the High Court as also before
us the parties herein had not produced any document to show that on what term
or terms the process of recognition/taking over of the private schools had been
matter of schools which were said to have been established by way of public
participation, things are no better. The Circular letter except mentioning that
such schools can be established also by public participation did not indicate
as to what were the roles to be played by the members of public. Did the said
public participation mean gift of land or construction of building or any
donation of a large sum by some of them? The Circular letter merely suggest
that if some persons donate a land specified therein or more, name of schools
can be as per his choice. The list of the schools shown to us discloses that
there are such schools which were named after somebody. But most of schools
were shown as Project Schools. If a school has been established as a Project
School without the name of the erstwhile school or without the name of the
school as per the choice of the donor, in terms of the policy decision of the
State it would have been expected that the number of such schools would have
been much more. It is curious to not that even in relation to a large number of
schools mentioned by the Director of Education in his response to the questions
which were placed before the Bihar Vidhan Sabha it was remarked that certain
schools were still to be identified or their identity is not known or building
was to yet be constructed. The question as to how a school could be taken over
where the identity of the land is not known or where no building is in
existence. On what basis this assumes significance, the three men Committee
could identify such schools is left to one's imagination.
of Schools :
is no dispute about 150 schools. Various documents as also the affidavits filed
on behalf of the State in no uncertain terms show that besides the schools
which were established by the State and are being run by it, there are various
other schools over which there was a dispute about their identification.
Government established 75 schools and three men Committee identified 57
schools. The teachers of the said schools were appointed by Vidyala Sewa Board,
but the documents produced and the affidavits affirmed by the parties point out
300 schools. We have noticed some discrepancies hereinbefore to show that the
number of the schools mentioned by either side may not be entirely correct but
the fact remains that before the Cabinet also, a representation was made by the
authorities of the State themselves that 300 schools are in place. It is only
on that basis the Cabinet sanctioned 1200 more posts.
letter dated 23.02.1985 :
said circular letter shows that the Government had selected 75 Girls High
Schools in each of the 700 blocks out of the selection of 300 blocks. A list
thereof was attached therewith. According to the respondent even in this
category there were both the categories of schools which were either taken over
and selected by the Government and those which were proposed to be established
as Project Schools. It is stated in the said letter that for the selection of
the schools in the rest of the blocks and where the schools have not by them
been established for the selection of site for the purpose of construction of building
three men committees are constituted.
2 of the said letter laid down the mode and manner of implementation thereof.
An annexure appended thereto shows the name of the schools and the dates of
recognition of the three men committee.
letter dated 4.2.1989 We have noticed that there is no dispute that in the
years 1982-83 and 1983-84, no school was recognized or established. We have
also noticed hereinbefore that one of the conditions for recognition was that
the teachers were required to be appointed by the Vidyala Sewa Board. In the
aforementioned context, the letter dated 4.2.1989 is required to be considered
for the purpose of this case.
in respect of the schools established by the State 9 posts were sanctioned for
the schools which were selected for recognition / taken over through the agency
of the three men committee, only 5 posts were sanctioned. It has not been
disputed that in the High Schools in question students are taught from class VI
to X, i.e., five classes. It has also not been disputed that every subject has
been categorized in three groups, viz.
groups, humanity group and science group and other teachers were to be
State is no doubt entitled to lay down qualification or sanction the requisite
number of posts. It may also in certain situations provide for relaxation therefrom
or lay down such terms and conditions as they may deem fit and proper. It is
also permissible for the State to appoint a screening committee for the purpose
of finding out whether the teachers satisfy the requirements laid down therein.
The State is also entitled to fix the age limit of such teachers. How many
teachers were required to be appointed and strength of the teaching staff and
the non-teaching staff again is a mater of policy decision of the State.
Indisputably, if somebody has any say in this behalf it will be the Bihar
Senior School Education Board, a statutory authority who is statutorily
enjoined to lay down the criteria for the purpose of recognition of said
schools by it. But for all intent and purport this issue has become academic.
In view of the fact that the State itself has realized the difficulty which the
schools would face if only 5 posts are sanctioned in each school. The Cabinet
itself realized that like any school run by the Government, it is necessary to
have at least 9 teachers even in the project schools. The strength of the
teachers for such schools has not only been sanctioned, sanction therefor was
given with retrospective effect and retroactive operation. Necessary funds were
allocated for the said purpose.
thus, it was the prerogative of the State to lay down the criteria, the same
has been laid down. Therefore, correctness or otherwise of the finding of the High
Court that the State was bound to recognize at least 9 teachers in each school,
for all intent and purport is now academic.
furthermore not in dispute that the State for the first time in its letter
dated 04.02.1989 laid down the qualifications for the teachers as also the
validity and/or legality of the said Government order dated 04.02.1989 was
questioned before the High Court. The High Court, as noticed supra set aside
the said directions holding that 9 teachers were required to be appointed in
each of the schools. This part of the order of the High Court does not require
elaborate consideration as the State Government had now sanctioned 4 additional
posts with retrospective effect.
deviation as regard implementation of the original scheme in the second phase
is explicit. The circular letter dated 27.05.1981 must be read as a whole. By
reason of the said circular letter 650 schools were to be established in the
entire State including Chhotanagpur and Santhal Pargana, which now forms part
of the State of Jharkhand. It has clearly been stated that at
the time of preparing proposal for establishment of new High Schools priority
was to be given to those High Schools which were granted permission for establishment
for proposed High Schools and efforts were to be made that getting all the
conditions regarding recognition completed from those High Schools. What was,
however, emphasized was that schools in respect whereof prior permission was
obtained and not of those schools which had already been functioning. If the
schools had already been functioning, in excess of the number of schools sought
to be established by the State, the purpose of establishing more schools would
not have been achieved. It was in that sense that the State thought of granting
recognition of such schools which were yet to be established, but local
resources, like land, building etc. could be properly utilized as a result
whereof the expenditure on the part of the State would be minimal. However, in
the event, such schools having prior permission for establishment are not
available, then the District Education Officer were asked to select such places
where the Government land were easily available so that expenses to be incurred
on purchase/acquisition of land could be saved.
has been placed on paragraph 11 of the said letter for showing that the
Government intended to take over the existing High Schools. The said paragraph
contemplates establishment of 33 Girls High Schools in 15 districts, where at
least 4 Boys High Schools are functioning.
sentence 'The selection of the above High Schools will be made by the District
Education Officers as mentioned in para 4' would not mean that some schools
which had already been functioning were required to be taken over. The
deviation from the prescribed policy of the State, however, started in the year
1982. The letter dated 12.10.1982 does not appear to be very clear. Whereas
Rs.1.5 crores had been sanctioned for construction of the building , teaching
aids, learning materials and establishment cost of the school, but then it is
beyond anybody's comprehension as to how the District Education Officers were
directed to inspect these schools and to issue notification formally taking
over their management and control as a result whereof the same would vest in
the State Government. The said para does not appear to be in consonance with
the main para as in terms thereof, the State Government intended to open 78
schools in TSP area and 72 schools in non-sub plan area. The other parts of the
said circular letter also are not in consonance with the first para thereof but
paras 2, 5 and 10 , if read conjointly, give an impression that the Government
intended to recognize some schools also. Para
10 of the said letter, however, is in two parts, namely,
ad hoc teachers
would be appointed so as to avoid unnecessary delay in appointing regular
headed by RDE will interview the teachers appointed by the previous management
committee of the school without advertisement, which would mean that such
teachers may also be appointed on an ad hoc basis.
however, fail to understand as to how by reason of the said circular letter,
the policy decision adopted by the State could be deviated from; but having
regard to the order proposed by us, it may not be necessary to say anything
further at this stage.
word 'take over' would mean that the Government had thought of taking over of
the properties and assets of the schools together with teaching and
non-teaching staff . Take over of schools in the context of the policy decision
of the State does not appear to be an expression of an intendment for complete
take over or the management of the school. In the former sense take over of
such schools would be violative of Article 300-A of the Constitution of India.
Article 300-A embodies the 'doctrine of eminent domain' which comprises of two
parts, (i) acquisition of property in public interest; and (ii) payment of
reasonable compensation therefor.
Nanbhai Khachar (supra), this Court held :
right of eminent domain is the right of the sovereign State, through its
regular agencies, to reassert, either temporarily or permanently, its dominion
over any portion of the soil of the State including private property without
its owner's consent on account of public exigency and for the public good.
Eminent domain is the highest and most exact idea of property remaining in the
Government, or in the aggregate body of the people in their sovereign capacity.
It gives the right to resume possession of the property in the manner directed
by the Constitution and the laws of the State, whenever the public interest
requires it. The term 'expropriation' is practically synonymous with the term
"eminent domain." In Bishambhar Dayal (supra) this Court held that
seizure of the food stuff in terms of an order made under Section 3 of the
Essential Commodities Act, 1955 would not be hit by Article 300-A of the
Constitution of India but categorically stated that such a course could not
have been taken under Article 162 of the Constitution of India, in the
following terms :
still remains the question whether the seizure of wheat amounts to deprivation
of property without the authority of law. Article 300-A provides that no person
shall be deprived of his property save by authority of law.
State Government cannot while taking recourse to the executive power of the
State under Article 162, deprive a person of his property. Such power can be
exercised only by authority of law and not by a mere executive fiat or order.
Article 162, as is clear from the opening words, is subject to other provisions
of the Constitution. It is, therefore, necessarily subject to Article 300-A.
The word "law" in the context of Article 300-A must mean an Act of
Parliament or of a State legislature, a rule, or a statutory order, having the
force of law, that is positive or State made law" In Thakur Bharat Singh
(supra), this Court categorically held that the State or its officers in
exercise of executive authority cannot infringe rights of citizens merely
because a legislature of State has power to legislate in regard to subject on
which executive order is passed.
right to manage an institution is also a right to property. In view of a
decision of an eleven-Judge Bench of this Court in T.M.A. Pai Foundation &
Others v. State of Karnataka [(2002) 8 SCC 481] establishment and management of
an educational institution has been held to be a part of fundamental right
being a right of occupation as envisaged under Article 19(1)(g) of the
Constitution of India. A citizen cannot be deprived of the said right except in
accordance with law. The requirement of law for the purpose of clause (6) of
Article 19 of the Constitution of India can by no stretch of imagination be
achieved by issuing a circular or a policy decision in terms of Article 162 of
the Constitution of India or otherwise. Such a law, it is trite, must be one
enacted by legislature.
Sahib Ram Jawaya Kapur and Others v. The State of Punjab [1955 (2) SCR 225], whereupon
reliance was placed by Mr. Mishra, this Court observed :
executive indeed can exercise the powers of departmental or subordinate
legislation when such powers are delegated to it by the legislature. It can
also, when so empowered, exercise judicial function in a limited way. The
executive Government, however, can never go against the provisions of the
Constitution or of any law. This is clear from the provisions of Article 154 of
the Constitution but, as we have already stated, it does not follow from this
that in order to enable the executive to function, there must be a law already
in existence and that the powers of the executive are limited merely to the
carrying out of these laws." The said decision, however, was distinguished
by this Court in Thakur Bharat Singh (supra), stating that the executive action
which was upheld therein was although not supported by legislation, but it did
not operate to prejudice of any citizen. It was categorically held :
executive action which operates to the prejudice of any person must have the
authority of law to support it, and the terms of Article 358 do not detract
from that rule. Article 358 expressly authorises the State to take legislative
or executive action provided such action was competent for the State to make or
take, but for the provisions contained in Part III of the Constitution.
358 does not purport to invest the State with arbitrary authority to take
action to the prejudice of citizens and others: it merely provides that so long
as the proclamation of emergency subsists laws may be enacted, and exclusive
action may be taken in pursuance of lawful authority, which if the provisions
of Article 19 were operative would have been invalid. Our federal structure is
founded on certain fundamental principles:
of the people with limited Government authority i.e. the Government must be
conducted in accordance with the will of the majority of the people. The people
govern themselves through their representatives, whereas the official agencies
of the executive Government possess only such powers as have been conferred
upon them by the people;
There is a
distribution of powers between the three organs of the State legislative,
executive and judicial each organ having some check direct or indirect on the
the rule of law
which includes judicial review of arbitrary executive action" In Union of
India & Others v. M/s Graphic Industries Co. & Others [JT 1994 (5) SC
237], it has been held that the letter written by an authority to the private
persons cannot give rise to a legitimate expectation.
there cannot be any doubt whatsoever that the word 'take over' has been used
loosely. It is well settled that a circular letter issued by an officer of the
State without fulfilling the mandatory provisions of Articles 162 and 166 of
the Constitution of India cannot be categorized as a decision by a State. [See
Sri Dwarka Nath Tewari & Others v. State of Bihar & Others [AIR 1959 SC 249].
said circular letter does not satisfy the requirement of Article 162 of the
Constitution of India, the question of a valid take over in the sense that the
properties and/or management thereof would vest in the State of Bihar, does not arise. Furthermore, the
District Education Officer is not empowered to issue a notification formally
taking over of management and control and vesting the same into the State
Government. In any event, if teachers were required to be appointed in the
manner laid down therein, it is beyond anybody's comprehension as to how the
management of the school is taken over together with the teaching and
non-teaching staff who had already been working therein.
if there is no dispute as regard number of schools, in view of the stand taken
by the State and particularly in view of the fact that it appears from the
records that recognition of the school, if any, had wrongly been granted to
some schools where buildings were also not completed or the process of
selection was also not over, it may be necessary for the State to have a
further look in the matter.
furthermore necessary to scrutinize as to whether the teaching and non-teaching
staff appointed for the said purpose fulfill the criteria in terms of the
policy decision of the State or not. Their qualifications laid down under other
relevant statutes for the purpose of obtaining permission must also be
not find any merit in the contention raised by the learned counsel appearing on
behalf of the Respondents that the principle of equitable estoppel would apply
against the State of Bihar. It is now well known, the rule of estoppel
has no application where contention as regard constitutional provision or a statute
is raised. The right of the State to raise a question as regard its actions
being invalid under the constitutional scheme of India is now well recognized. If by reason of a constitutional
provision, its action cannot be supported or the State intends to withdraw or
modify a policy decision, no exception thereto can be taken. It is, however,
one thing to say that such an action is required to be judged having regard to
the fundamental rights of a citizen but it is another thing to say that by
applying the rule of estoppel, the State would not permitted to raise the said
question at all. So far as the impugned circular dated 18.02.1989 is concerned,
the State has, in our opinion, a right to support the validity thereof in terms
of the constitutional framework.
said so, we must observe that the ultimate decision must be left at the hands
of the State. In view of the Cabinet decision dated 25.01.2000, 300 schools are
said to have been recognized. We have, however, our doubts as to whether all
correct facts have been placed before the Cabinet or not particularly in view
of the fact that many of the schools which were established in Chhotanagpur and
Santhal Pargana are now in the State of Jharkhand. We have pondered over the matter but we are not very sure as to
whether apart from the schools which had been identified by the three-man
committee and admittedly recognized by the State, any final decision had been
taken as regard recognition or otherwise of the remaining schools by the
the said purpose, we are of the opinion that a committee should be constituted
for the said purpose.
Chief Secretary of the State of Bihar is, therefore, requested to constitute a committee comprising of two
officers and one Educationist of repute and/or a retired Judicial officer. In
the event a Judicial Officers is appointed as a member of the committee, he
would be the chairman thereof.
of the Judicial Officers and/or the Educationist shall be determined by mutual
Chief Secretary is hereby requested to place at the disposal of the committee
the requisite staff, which may be required by the committee, from amongst the
staff of one or the other department of the State. In the event it is found
that teachers have been appointed on ad hoc basis, the Vidayalay Sewa Board
shall be directed to make regular recruitment strictly in accordance with law.
the concerned Regional Deputy Directors of Education must also submit their
reports in respect of the Project Schools within four weeks from date before
the committee. The Committee shall also deal with all such individual cases of
the Appellants, as has been directed in para 35 of the judgment of the High
the educational institutions claiming recognition or having any other claims
would file their representations together with all supporting documents within
three weeks from date. In their applications, the institutions must also give
details of the students admitted in each class year-wise.
from the records, it appears that about 300 schools laid their claims having
been recognized which is also evident from the decision of the Cabinet, we are
of the opinion that the question as to how many schools fulfil the criteria
laid down by the State Government in terms of its policy decision must be
constitution of the Committee may take some time, such claims may be filed in
the office of the Education Secretary, who would open an appropriate cell in
this behalf. The committee upon scrutinizing the claims of the institutions
and/or the teaching and non-teaching staff would submit a report before the
Chief Secretary within three months.
Chief Secretary is requested to place the said report together with his
comments thereupon before the appropriate authority in terms of the Rules of
Executive Business and it is expected that the said authority of the Government
of Bihar shall take appropriate decision thereupon within four months from
would appreciate, if the State Government takes suitable action against those
who may be found responsible for commission of irregularities and/or
illegalities in the process of implementation of the Government scheme in
accordance with law.
regard minimum age of the teaching and non teaching staff, indisputably the
same should be 18 years.
as educational qualification of the teaching staff is concerned, we are of the
opinion that having regard to the fact that the limited number of teachers were
to be appointed with a view to accomplish a constitutional goal of spreading
literacy in the villages, particularly amongst the girls, the standard adopted
in Zila Schools or Government schools constituted in urban areas may not be
insisted upon, as was observed by the High Court, but keeping in view the fact
that it is essentially a Government function, the question as to whether some
teachers having B.T. training or training in Physical Education would be
allowed to continue in the said Project Schools or not is left to the State, wherefor
a decision in a decision in accordance with law may be taken.
appeals are disposed of with the aforementioned observations and directions. In
the facts and circumstances of the case, there shall be no order as to costs.