Full Judgment Text
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CASE NO.:
Appeal (civil) 6626-6675 of 2001
PETITIONER:
State of Bihar & Ors.
RESPONDENT:
Project Uchcha Vidya, Sikshak Sangh & Ors.
DATE OF JUDGMENT: 03/01/2006
BENCH:
S.B. Sinha & P.P. Naolkar
JUDGMENT:
J U D G M E N T
W I T H
CIVIL APPEAL NOS. 6676-6681 OF 2001
S.B. SINHA, J :
These Appeals involving common questions of law and fact were
taken up for hearing together and are being disposed of by this common
judgment.
Introduction :
Imparting 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.
Policy Decision :
Presumably, 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 block.
The 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
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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:
"1. Santhal Pargana 15
2. Ranchi 9
3. Palamu 9
4. Hazaribagh 13
5. Giridih 4
6. Dhanbad 2
7. Singhbhum 13
Total 65"
It was further laid down therein that :
"4. It is 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.
5. The State 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:
1. Santhal Pargana 8
2. Ranchi 8
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3. Palamu Nil
4. Hazaribagh 5
5. Giridih 2
6. Dhanbad 1
7. 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:
1. Santhal Pargana 4
2. Ranchi 3
3. Palamu 2
4. Hazaribagh 1
5. Giridih 1
6. Dhanbad 1
7. Singhbhum 1
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.
Further, 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.
Therefore 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 established
district-wise:
Number of District Number of Boys Schools to be
newly established
1. Rohtas 2
2. Bhagalpur 1
3. Purnia 2
4. Saharsa 1
5. W. Champaran 2
6. 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.
Yet again in another Circular dated 21.2.1982, the mode and manner
of appointment as also the requisite qualification for
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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.
It is not in dispute that during 1981-82, 150 schools were established.
According 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:
Darbhanga - 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 :
It also is not in dispute that a three-man committee constituted for the
purpose of identification of the existing schools identified 57 schools.
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:
"(a) The first preference would be provided in the
establishment of schools to the Block head
quarters.
(b) If there is no Girls School in block then the
committee would decide where it would be
appropriate to establish schools.
(c) 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.
(d) Where a school established by public initiative is
taken under the project then the teachers therein
would be appointed by the Vidyalaya Sewa
Board."
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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 Project Schools.
Whereas, according to the State 57 schools were recommended, the
respondents contend that in fact 225 of such schools were recommended.
The 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.
It is 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 :
"(i) Such persons 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 Board.
(ii) 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)
(iii) The standard 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.
(a) Language Group-3 (Hindi-1, English-1 and
Sanskrit -1)
(b) Humanity Group-3 (Home Science,
Geography, Civics, Economics and three in
the light of seniority, qualification and
utility).
(c) Science Group-2 (Math-1, Biology-
Chemistry-1)
(d) Other teachers-1 (Minority language, Music,
Fine Arts, Commerce, Only one in the light
of seniority, qualification and utility)."
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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.
degree 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 :
"3. 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.
Writ Proceedings :
Teaching 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.
Findings of the High Court :
A Full 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 :
(i) Establishment/take 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.
(ii) The provisions 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.
(iii) 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.
(iv) 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 :
(a) Sanctioned strength of the teachers in the schools;
(b) minimum qualification on the date of the appointment;
(c) over age and under age on the date of appointment;
(d) degree equivalence;
(e) the question with respect to the circular holding the field
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for recognition/regularization of the service conditions of
teaching and non teaching staff of all the schools for the
year 1984-85;
It was 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; (ii) 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; (iii) The qualifying 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; (iv)
The minimum qualifying age for appointment was 18 years; (v) The
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.; (vi) The provisions 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; (vii) The provisions 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.
The 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 :
"\005Individual 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 :
"36. 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
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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.
Subsequent events :
Before 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 case.
After 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 Schools.
On or 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.
By a 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.
By a letter dated 30.03.2004, it was laid down :
"An 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 :
On behalf of the State :
Mr. Rakesh Dwivedi, the learned Senior Counsel appearing on behalf
of the State of Bihar, submitted :
(i) 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.
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(ii) Reliance placed 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.
(iii) 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.
(iv) The expression ’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.
Reliance, 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.
Referring 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.
(v) 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.
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(vi) 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;
but so 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.
If the private schools wanted to have more staff, salaries to such surplus staff
were required to be paid by them from its own funds.
(vii) 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.
On behalf of the Schools/Teaching and non-teaching Staff :
Mr. P.S. Mishra, the learned Senior Counsel, appearing on behalf of
the Respondents in some of the matters, on the other hand, would submit :
(i) 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 categories :
(a) Schools 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.
(b) Schools 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.
(c) The schools as enumerated in category (a) and (b) as stated
above are covered by one nomenclature, i.e. Project Schools.
These 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.
(ii) Having accepted 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.
(iii) 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
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schools, the said question now does not survive.
(iv) 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.
(v) 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 :
"Year 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.
(vi) 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.
The 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.
Even 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.
(vii) 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
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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.
(viii) 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.
(ix) 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.
Mr. Ravindra 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.
Our attention, in this behalf, has been drawn to the following
statements made in the Counter Affidavit filed in CWJC No.12326 of 1992 :
"That 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 :
"a) Those schools 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 letter.
b) Those schools 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.
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Mr. 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.
It was 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.
Mr. Shrivastava 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.
Analysis :
The 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.
In 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.
The 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
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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.
The 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.
Moreover, 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 :
"(A) 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.
(B) 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.
In 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 Districts.
(C) 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.
(D) 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.
Although 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
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comment thereupon.
It is 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.
On the 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.
If it 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.
We 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.
We 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 1984-85.
Take over or Regularization of the Services :
So far 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 \026 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 the State.
It is 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
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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.
If new 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 invoked.
Three-men Committee :
There 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 made.
Public Participation :
In the 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.
Number of Schools :
There 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.
The 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
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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.
Circular letter dated 23.02.1985 :
The 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.
Paragraph 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.
Circular 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.
Whereas 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.
language groups, humanity group and science group and other teachers were
to be appointed accordingly.
The 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.
Although, 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.
It is furthermore not in dispute that the State for the first time in its
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letter dated 04.02.1989 laid down the qualifications for the teachers as also
the strength thereof.
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 :
However, 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.
Reliance 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.
The 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, (i) ad hoc teachers would be appointed so as to avoid unnecessary
delay in appointing regular teachers; and (ii) a committee 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.
We, 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
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to say anything further at this stage.
Take over :
The 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.
In Jilubhai Nanbhai Khachar (supra), this Court held :
"The 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 :
"There 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.
The 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\005"
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.
The 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
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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.
In Rai 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 :
"\005The 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 :
"\005All 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.
Article 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:
(1) the sovereignty 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; (2) There is a
distribution of powers between the three organs of the
State \027 legislative, executive and judicial \027 each organ
having some check direct or indirect on the other; and (3)
the rule of law which includes judicial review of arbitrary
executive action\005"
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.
Therefore, 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
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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].
If the 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.
Conclusion :
Even 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.
It is 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 scrutinized.
We do 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.
Having 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 appropriate authority.
For the said purpose, we are of the opinion that a committee should
be constituted for the said purpose.
The 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
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appointed as a member of the committee, he would be the chairman thereof.
Remuneration of the Judicial Officers and/or the Educationist shall be
determined by mutual agreement.
The 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.
All 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
Court.
All 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.
Although 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 considered afresh.
As the 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.
The 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 date.
We 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.
As regard minimum age of the teaching and non teaching staff,
indisputably the same should be 18 years.
So far 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.
These appeals are disposed of with the aforementioned observations
and directions. In the facts and circumstances of the case, there shall be no
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order as to costs.